THE SUPREME COURT'S PARTICIPATION IN THE CONSTRUCTION OF THE MEXICAN DEMOCRATIC MODEL
José de Jesús GUDIÑO PELAYO
Before opening discussion or debate, the participants must commence upon or reached previous agreements, common stipulations, which will make possible a fertile exchange. Only on this basis will there be certainty that everyone is talking about the same issue, and a warranty of correspondence between what one expresses as his opinion and what others do as well. In a few words, there must be a common and clear understanding of the premises of the debate, exception made —of course— that defining them is, precisely, the motive of the debate.
In the framework of an event that convokes us under the title of "Constitutional Courts and Democracy", I must begin my participation expressing, as a personal conviction, that, in our national context, that is equivalent to disserting about the relationship between this Supreme Court and the construction of the Mexican democracy. I will try to explain myself in the following.
The "constitutional courts" that with such denomination were born in twentieth century Europe, in their most purist or orthodox conception, possess certain traits that award them their qualification of "constitutionals". In essence, they concentrate, in a monopoly fashion, the control of the constitution, they are organically alien to the executive, legislative or judicial powers, and are authorized to decide erga omnes the constitutional conformity of laws. The structure upon which these courts were designed and organized obeyed to the specific historical, legal and cultural context that prevailed in that geography, especially the experiences and lessons left by the Second World War, such as the prewar impact that the totalitarian regimes like the fascist, franquist, nationalsocialists, among others, had on the judicial structure and mentality. Not withstanding, that does not suppose that more than a century afterwards, the denomination "constitutional court" should be exclusive or reserved to those courts that adopted the European model’s traits.
As of today, of course, those traits are typical of the European constitutional court model, but they cannot be the basis upon which it is determined if a court is or is not a constitutional one. They interest, yes, to differentiate if what we have is a European or a non European model of constitutional control, but not to distinguish if we have or not a constitutional court —which is another question—.
The American model of constitutional control was born many years earlier than the European, and is consequent to a historic, legal and cultural context very different from that one, that imprinted from origin birthmarks that have been, ever since, traits that have distinguished it from the others. For example, the American constitution did not provide expressly a procedural action for constitutional control, and such it was that by way of interpretation in the well-known Marbury vs. Madison case, the judicial review was instituted as the authority of judges to decide the constitutional conformity of the laws. Upon such criteria, a diffuse system of constitutional control was developed, in which, albeit all judges may decide the over the constitutionality of the law, the United States Supreme Court is the ultimate and terminal authority in these matters and its decisions mandatory to all.
The jurisdictional and political function that the American Court plays as the maximum interpreter of the Union’s Constitution, is not less important or different than the one "Constitutional Courts" have in Europe. I believe that these, amongst all other things, allows us to award or identify the American Supreme Court as a constitutional court, although it is not formally alien to the judicial, executive or legislative powers and does not monopolize constitutional jurisdiction, as do the European models.
I believe we can hardly continue to reserve the term "constitutional court" to those that are organized following the framework of the European models, in a world of so much cultural diversity. More over, those traits may be relegated to a second level, being the fundamental in order to identify a constitutional court, putting aside formalisms o denominations, that it is one that holds constitutional jurisdiction as the maximum and terminal authority within the own legal system. Each country beholds in its own history the reasons that conduced the design of their constitutional justice system to adopt one model or another.
The Mexican model of constitutional justice has features that resemble both the European and the American model, but this is not the occasion to dissert about such matters; what is really important is that it is a scheme formed over a tradition more than a century old, that is product of the different contexts that in each of the phases of its gradual confection have prevailed and of the paradigms that historically have forged our culture.
I understand as legal paradigms the group of ideas, doctrines, beliefs and perceptions of reality that, in the fundamental, determine the legitimacy, design, structure and content of the legal institutions and practices, which, as with the scientific ones, during a certain period of time are universally admitted and provide models of problems and solutions in a particular political community. Paradigms are a fundamental part of the rationality of the legal system, they legitimate its contents and justify its scope and limits.1
Paradigms are also substituted or superseded with time, not in a radical o mechanical fashion, but, in general, the entering paradigm substitutes the prevailing one gradually, advancing as it acquires new followers, until replacement takes place, and the old one is from then part of the history of law or part of the institution’s past.
Contrary to the European or American cases, our system begins in the 19th century with an expressly confectioned procedural action for constitutional control, and not by way of judicial interpretation, as in the American experience; I’m referring to the writ of amparo. From its establishment and during its development, the writ of amparo has been a constitutional action that has adapted and responded to diverse legal necessities and to different social and political contexts, likewise to the paradigms prevailing from time to time. It is not casual or coincident that for more than a hundred years it has been the fundamental pillar of the Mexican justice system.
In our case, the paradigm that for many years sustained the developing of the writ of amparo and the structure of the justice apparatus, gave way to a new one, in which new and more procedural mediums of constitutional control were required. The sum of both sustains today our constitutional control system and conform altogether the Mexican procedural constitutional justice.
This construction was shaped by the different constitutional reforms that since 1988 modified the authority and the forms of the Mexican Suprema Court, to convert it into a mainly constitutional jurisdiction organ, limit or terminal in its own system, maximum authority in the interpretation of the Constitution, particularly through controversias constitucionales (constitutional controversies) and the acción de inconstitucionalidad (constitutional action for deciding constitutional conformity of laws). I’m referring to the successive reforms of: a) 1998, that removed legality control by way of amparo from the Supreme Court and transferred it to Circuit Courts (Tribunales Colegiados de Circuito); b) 1994, the recreation of the controversia constitucional and the instauration of the acción de inconstitucionalidad; c) 1996, the reform that authorized the Court to dictate general agreements by which it could delegate to Circuit Courts certain cases constitutionally determined, and also the reform that awarded jurisdiction to decide de constitutional conformity of electoral laws, both federal an local, issue until then impeded to any organ; and d) in 1999, the reform that authorized the Supreme Court to, by its own criteria, delegate cases to Circuit Courts. As the German Otto Bachof would say, the Constitution decided for the judiciary, depositing in it the great and noble responsibility of making it alive.
The authority, structure and functions that shape our Supreme Court, lead me to the full conviction that it is an authentic constitutional court; that although it does not have the exterior shape that such courts present in the European model, specially, being alien to the other power branches, from a jurisdictional point of view, it is materially similar; and that, although it does not monopolize the authority to interpret the Constitution, because it shares it with he Circuit Courts and District Judges (jueces de distrito), it is the terminal, limit and maximum organ of constitutional control and interpretation in our system and the only one that has the authority to resolve conflicts between branches of federal and state powers or federal power and state or municipal governments.
Our Supreme Court has the same jurisdiction and undertakes the same political function that in the European model constitutional courts do or that of the United States the Supreme Court, but throughout a structural design of it’s own, which responds to the paradigms and contexts of our culture, and that summons the best of both worlds. Hence, I insist, it is clear to me that, aside semantics, the Supreme Court is truly a constitutional court.
Without doubt, in Mexico the constitutional court was conceived in a scenario in which we experiment a period of democratic transition. The authoritive and centralists regimes that for years characterized our country, began to cede to a more open political environment, time during which the Supreme Court changed from a court with mixed jurisdiction —in both legal and constitutional matters— to a court that is mainly occupied in constitutional control, that is, to a constitutional court. The conditions that in one moment gave way or triggered the expansion of the amparo, encountered a turning point: it was not a question of continuance in it’s expansion but instead a moment to search for new and different alternatives or actions of constitutional control feasible within our state structure and our cultural, social and legal context.
The exercise of power, from being in extreme concentrated, is now plotted over a scheme in which power is shared between Federal, State an municipal governments; likewise horizontally within each of these levels and between political parties, distribution that gave way to the occasion for the legal system to demark the limits amongst each entity —as they should have been always— with the very significant difference that, now, upon inobservance of such limits, they are demandable by the affected entities. And democracy, by definition, orbits around limited powers.
In these new circumstances, the role the Supreme Court plays is not reduced, as it was for more than a century and a half, to being the interpreter and warrantor of individual rights (as of persons), but in addition, it plays another fundamental part, and it is being arbiter in conflicts between powers and levels of government. It is a full weight Court that demarks constitutional lines and spaces when they have been eroded by the actions of public powers or when there are differences as to their scope, and this guarantees, in favor of those of us who live in and integrate the democratic regime, that democracy subsists as a our way of life and that the Constitution be the rector and guide of how public power is democratically exercised.
Without a constitutional court to perform this important function, that in Mexico is attributed to the Supreme Court, we would have, in García de Enterría’s words, "…a deathly wounded Constitution, with its future linked to that of the political party in turn, that imposes in those cases, by simple factual relevance, the interpretation that in such moments convenes to its interests…".2
In the awakening of a democratic regime, enmarked by a transition process that may have around 10 or 15 years in gestation, there are no hegemonic political parties in the federal, state o municipal governments; Congress and its houses do not commune politically, I personally find it logical and natural that conflicts arise with significant frequency and require a jurisdictional solution taken by an organ that resolves only in interest of constitutional supremacy.
In so far the Court has resolved highly politized disputes and has, by such way, interpreted the political constitutional regime, it has been an important actor and sometimes the leading one in the process of transition to democracy and, more over, in the construction of our democratic model. Conflicts that in other times were solved through vertical political controls, today, under the impossibility to convene or dissolve in the political arena, find solution in this Court, along with the undoubtful benefit of guaranteeing the procedural equality of both parts and the impartiality of a technical organ that, in an objective manner, albeit not infallible, imposes a solution that derives from the Constitutional framework.
A brief review of the Court’s last ten years exemplifies the aforementioned about the role it has played in this era in which democracy is in construction. If seen in number of cases, we have that, until December 2004, 873 controversias constitucionales, 222 acciones de inconstitucionalidad and several thousands of amparos were presented. If seen in the merits of the cases and highlightable criteria, we can exemplify by mentioning, in no particular order, the following:
The controversy presented between the Federal Executive and the Cámara de Diputados, equivalent to the Congress’ house of representatives, when the latter audited the "FOBAPROA" (private banking governmental rescue) archives, and the Executive refused, arguing bank secrecy, to reveal or require banking institutions the information that the auditors solicited.3
The multiple controversies presented against the constitutional reform in indigenous (native’s) matters, occasion in which, by majority, the Court determined that nor the content or procedure of constitutional reform can be revised by it.
The controversy in which a local government questioned the authority of the Federal Executive to fix o determine time zones in the country and the summer time change.4
The dispute between the Camara de Diputados and the Federal Executive, for acts of the Federal Superior Auditor, in which the latter ordered the Secretary of the Treasury to perform certain financial acts, motivated by its audition of the bank rescue archives.5
The multiple criteria that through rulings in amparos, controversias and acciones de inconstitucionalidad, have been set about judicial guarantees, especially those pertaining to the stability and permanence in office of state magistrates and judges.6
The important decisions taken as to what can and can not be undertaken by administrative regulation (reglamento), by Congress law or by constitutional reform in regard to electric energy, in particular, it’s generation and distribution.7
The interpretation of the constitutional rules for political parties, especially those concerning to their public financing.8
The criteria set about the forced disappearance of persons and crimes against humanity that are ruled by international instruments subscribed by Mexico.9
In controversia constitucional, the definition of multiple issues regarding the autonomy of municipalities, the public services they provide, their economic independence, criteria that has influenced positively and significantly in their relation with their corresponding state governments.10
The controversy in which, by majority, precedent was set stating that states may legislate and create state constitution controls.11
There are many other cases by which I could exemplify, but the cited ones are a representative sample. What can I say of the recently presented dispute between the Federal Executive and the Cámara de Diputados regarding the federal budget for this year!
In cases like these, the Court has not only been a valve for political and social depressurizing, by solving disputes that may have otherwise concluded in other dimensions, but with each resolution it is defining the Mexican constitutional regime, specially in those points that could have been gray.
The legal patrimony that the Court’s participation in this agitated period has left, leaves future generations numerous precedents and thesis that interpret and provide certainty about the contents of our Constitution, the scope of the human rights by it protected and the lines between powers and levels of governments that must be respected. This rich legacy is also it’s share in contributing to the construction of democracy.
In a scenario like the desired, in which democracy is a reality in all its extension and society believes in and lives a constitutional culture, ideally, conflicts between political entities and between state authorities and the people are significantly lesser, and the majority of them find solution within the own parties in conflict.
In our reality, one in which all the state organs are repositioning, avoiding litigation results difficult; but the constitutional culture, within the democratic context we are building, must lead us to see the resolutions of this Court as decisions in which there is no winner or looser, but it is the Constitution that wins and, thus, democracy.
Court rulings should not be seen as score boards, in which one wins and the other loses; in which followers of one or another team either congratulate themselves for being favored by the decision, or get annoyed by not being so thus dividing public opinion, not much for differing with the decision or arguments of the ruling, but because they are politically uncomfortable or unfavorable to them and they are taken as the occasion to discuss the convenience of the existence of the Court or the convenience of creating another one, hypothesis the latter that —for the moment— will only lead to transfer the problem from one place to another.
These troubles seem explainable in a context in which there was no third party that mediated to resolve disputes between levels of government, as today, moreover with the authority to enforce it’s decisions. Other countries in which Constitutional Courts operate have presented a similar problematic.
Enough may be to refer the opinion of two persons that know of these happenings: the German, Otto Bachof, to whom I have referred in the preceding; and the Spanish constitutionalist Tomás Ramón Fernández.
In the famous conference Otto Bachof imparted in Germany when the Constitutional Court was having it’s tenth anniversary, moment in which a sector had questioned the constitutional election of depositing in such organ the Constitution’s keepsake, for issues very similar —if not equal— to those issues aroused today in Mexico, Bachof expressed what he believed those reactions obeyed to: amongst other things, he explained that, given their historical antecedents it was understandable that some political actors resented having a demarked or enclosed power by limits that were demandable.
He also expressed, and I subscribed it in what is applicable to the Mexican case, that although those questions arose, questions that with time the Court’s performance superseded, the importance of the function the Court had was undeniable; that aside any of the objections formulated, for example, the "judicialization of politics", the invasion of powers, the possibility of having a small group nullifying the actions of the legislative, etcetera, the up most pro could not be shadowed, and it was that the Constitutional Court came to consolidate the German Constitution as the defining and leading document of it’s public life, and to promote a culture in which the exercise of power finds demandable and enforceable limits and the human fundamental rights a referent to be materialized.
The Spanish case wasn’t very different from this, as the following cite illustrates so, in which by responding to the same questions Bachof did in Germany, the spanish Tomas Ramon Fernández concludes:
Those who today, with the eco that the high position they occupy in the State guarantees them, question, falsely scandalized, why twelve judges without popular mandate —in our case we would be eleven— can make prevail their opinion over that of the ten million persons that have voted for them, know perfectly —because they knew it yesterday when they protested against ‘mechanic majorities’ and the ‘parliamentary rollover’ that these phenomena are, certainly, inevitable, and that precisely by being so, they require inexcusably a counterbalance, ‘a force that is preoccupied at least, that the superior values of law and order, that the Constitution has established as fundamentals, remain protected’ and ‘that force can only be the judge’.12
As the author expresses, the questions aroused in the German experience are the same as those in Spain and I would add, are the same that today arise in Mexico.
With time, as was in Germany, the Spanish Court proved that, among all things, the benefits surpass the inconveniences or incommodities that it’s participation generated, especially during it’s first years.
In the democratic and mature society we aspire, wishfully the Constitutional Court’s decisions will not be thought of as radicalizing documents, in which at the outcome a party walks out triumphal and the other defeated. Instead they would be seen, aside from their political tints —indivisible, but only momentous— as documents that contribute to a better exercise of power, as they contain it within its constitutional limits, not only in favor of the relations between power entities, but likewise for the relation between the State and individuals, and further more to the construction of our democracy.
I am convinced that the Supreme Court is the Constitutional Court of the construction of democracy in Mexico, and so it shall be for the time being the paradigms and contexts that gave way to its transformation remain the same.
That is why I am pleased that the Constitution decided for the judiciary, and I pride in being part of a Court that, with it’s decisions, in exclusive interest of constitutional supremacy, contributes day to day in the construction of the Mexican democracy model, despite the incommodities that in a society in transit —like ours— it’s participation may cause.
Moreover, I am pleased to have the opportunity to express so on the occasion that this Court celebrates the tenth anniversary of its restructuring, a period without equal in the country’s history.
Notes
1 I expressed this same idea in my essay "El ‘amparo Morelos’ y los paradigmas de la ‘incompetencia de origen’", published in Ingeniería judicial y reforma del Estado. Preocupaciones, inquietudes, esperanzas..., 2nd edition, Mexico, Porrúa, 2003; the spanish José Ortega y Gasset has said that: "a belief is not simply the idea that one thinks, but that one that, moreover, he believes. And believing is not a function of the ‘intellectual’ mechanism, but is a function of the living as such, the function of orienting his conduct…" (translation ours), see his book Historia como sistema, Madrid, Espasa-Calpe, 1971, Austral collection, p. 11.
2 Translation ours; García de Enterría, Eduardo, La Constitución como norma y el Tribunal Constitucional, 3rd edition, Madrid, Civitas, p. 186.
3 Constitutional controversy 26/99; August 24, 2000.
4 Constitutional controversy 5/2001, September 4, 2001.
5 Constitutional controversy 36/2003, November 4, 2003.
6 Among others, see amparos en revisión 2639/96, 783/99, 234/99, 580/2000, 2021/99, 2083/99, 2130/99, 2185/99, 2195/99; acción de inconstitucionalidad 30/2001 (and its accumulated 31/2001); constitutional controversy 35/2000.
7 Constitutional controversy 22/2001, April 25, 2002.
8 See multiple jurisprudence under the title of public financing of political parties.
9 Constitutional controversy 33/2002; recurso de apelación extraordinaria 1/2003, decided by the First Section (Primera Sala) of the Court.
10 See multiple jurisprudence under titles of municipal autonomy, economic independence of municipal treasuries (libre hacienda municipal) and municipal public services.
11 Constitutional controversy 16/2000, May 9, 2002.
12 Translation ours; Fernández, Tomás Ramón, prologue written for the Spanish edition of German "Jueces y Constitución", by Otto Bachof, Madrid, Civitas, 1985, p. 12.
