CONTEMPORARY JUDICIAL DIALOGUE IN MEXICO^*
José de Jesús GUDIÑO PELAYO^**

SUMMARY
I. The new role of the Supreme Court beginning with the judicial reform of 1994. II. The struggle to protect judicial guarantees. III. The hierarchy of rules between international treaties and the Constitution.

The impact of the phenomena of globalization in connection with the courts is a very important and interesting subject today, but it is also very complicated. Understanding it requires, from my perspective, interdisciplinary studies that not only deal with law, and an observation stage of the study subject that would give us elements that help us obtain our own conclusions.

In this process I find clearly justified that within the framework of this symposium that discusses the relationship between globalization and the judiciary, some time be dedicated to the judicial dialogue because I consider that this discussion will give us a looking glass to understand the function and the relevance of the courts, and could be a point from which the already mentioned observations could begin.

In this framework, I believe that my contribution to this academic exercise could be my own appreciation of the contemporary judicial dialogue in my country, understanding this dialogue as the permanent approach between judges, between courts and public powers, and between courts and society, and how, because of the dialogue, we have been able to construct and redefine a Mexican Rule of Law. I consider that from my comments, you will be able to make your own conclusions regarding the impact that the globalization has had, if therefore you conclude it, in our Supreme Court.

Of course, it is impossible to discuss all of the many different aspects of this subject in a brief lapse of time, because any delimitation could lead to errors; however, it is possible to separate these subjects into three points:

1. The new role that the Supreme Court must fulfill in the political scene as of the constitutional reform of 1994.

2. The struggle in our own courts for the judicial guarantees.

3. The complex subject of the hierarchy of rules, particularly between the Constitution and international treaties; as well as the maintenance of the protected human rights through international legal instruments and by the "juicio de amparo",¹ which is the cornerstone of our system.

I will refer to each of these subjects and explain the points I consider most notable.

I. THE NEW ROLE OF THE SUPREME COURT BEGINNING WITH THE JUDICIAL REFORM OF 1994

Traditionally, at least in the Mexican system, the Judicial Power had carried out the work of individualizing the legal rules in concrete situations through the resolution of controversies between citizens, or between citizens and the authority, through the procedural institution that has more importance in Mexico: the "writ of amparo".

However, at both the local and international levels, the function of the courts in the state framework has been significantly expanded. The world tendency has been to grant the courts the role of interpreting constitutional texts in order to guarantee their efficiency, turning the courts into the State institution in charge of fulfilling political-governmental assignments. Mexico has not been an exception.

In our actual system, society contemplates the judicial dispute as an activity with important social and political repercussions; meanwhile, the courts carry out a controlling function by resolving particular conflicts that have the potential of becoming into social conflicts, but the society also observes in the dispute an important function of political control, to the extent that through this activity, their rights can be defended against the authorities in such a way that the government resolves in jurisdictional form its own legal disputes.

To get the state in which the courts, particularly the federal judiciary, fulfill many different functions has been the byproduct of a gradual process of structural transformations at the constitutional level of its own judicial apparatus, but between all of them, without a doubt, the most important is the constitutional reform of 1994.

This reform modified substantially the structure, integration and competence of the Supreme Court and also changed forever its relationships with other branches of the public power, giving the Court the competence for resolve the constitutional controversies and unconstitutional actions.

In virtue of this legal figure called "constitutional controversies", the Supreme Court is competent to resolve disputes that arise between the levels of the government, whether it arises between the federal government and the states, between states or between states and municipalities; moreover, the Supreme Court resolves the conflicts between the government levels, whether at the federal or state level. On the other hand, concerning "actions of unconstitutionality" the Supreme Court is able to void with erga omnes effects the laws that are passed by Congress or by the local legislative power if they are against to the Constitution.

The granting of these abilities has had an intense impact on the position of the Supreme Court when facing the other government branches or society itself. In front of the Federal Executive branch and Congress, the Supreme Court has acquired a position never achieved before because of the Court’s ability to make important interventions when conflicts arise between different government branches dealing with the constitutionality of their performance and this has given the Court a better position in front of society.

In summary, with the litigations that the Supreme Court resolved by dealing with constitutional conflicts, a constant dialogue has begun between parties and the Court and between the Court and lawmakers, which has been very fruitful because it has rendered elements of great importance to the state in Mexico. Here, I would like to refer in detail to some of them because I believe that its importance and impact in the public life justify it:

1) Over the last 10 years, when the controversial constitution came into effect, the Supreme Court was elevated into a factor of institutional balance between branches of government and between federal and local levels, and has resolved many conflicts which in the political arena, far from being resolved, they had been only made more complicated; in this way the Court has resolved through a jurisdictional way conflicts between the branches of the government, with all the guarantees involved for the parties in conflict, like the opportunity to be heard, impartiality, objectivity and legality, guarantees that in other scenarios they would not have had at their disposal, for example, the conflicts between the Legislative Power and the Executive caused by the very controversial FOBAPROA; the summer schedule, the distribution resources by the federal government toward the states and municipalities, among others.

In the resolutions that ended this disputes and urged by the requests formulated by the litigating parties, the Supreme Court interprets the constitutional and legal framework that manages the performance of every of the branches of government which are in conflict, interpretations that acquire a bind character and that, combined with the decisive content of the resolution, contribute to the construction of concepts that, when combined give shape and life to the Rule of Law.

2) Another point that should be mentioned is the constitutional interpretation made in the resolutions of constitutional controversies, which means a great contribution to the enlargement of contents to the municipal institution.

In Mexico, the municipality is the smallest political and administrative unit in which the country is divided, but precisely for that reason it constitutes the closest entity to the citizens and stands as the most immediate authority they have. Even when the constitution gives this unit very important political power for its development, it has been necessary that the Supreme Court constantly construes the legal framework in order to make it valid because the federal and state political forces tend to impose their interests over the municipality. For this reason, the majority of constitutional controversies that have come before the Supreme Court involve municipalities.

As a brief side note, and because the matter of the present discussion is globalization, it tends to be paradoxical that in the globalization era, the highest tribunal of my country spends so much time in a subject that in a global context may seem like a small problem.

I believe that this can be explained considering that Mexico has over 2,400 municipalities and that, outside of the Federal District, all Mexicans live and are attached to a municipality.

This is the immediate political community, the territorial extension where neighborhood relationships are developed, where people live and work, and also where they are under the authority of a city hall that not only fulfill the policing role, but also is in charge of providing basic public services. The Supreme Court cannot ignore such reality for only being dedicated to the study and solution of problems that could, at least at first glance, seem more relevant for the global community.

II. THE STRUGGLE TO PROTECT JUDICIAL GUARANTEES

On another subject that binds the public with the individual, the reference to the open dialogue regarding the protection of judicial guarantees that have been sustained in Mexico for many years is obligated.

Like in many parts of the world, in Mexico the Constitution grants the judges various guarantees, called "judicial guarantees", in order to achieve, in optimal conditions, the delicate labor of judging; between those guarantees are the stability and continuance in a tenured job without the reduction of his salary, etc. Everything directed to make possible that they judge with absolute independence and impartiality, in an attempt to preserve the quality and effectiveness of justice for the judged, as set forth by article seventeen of our Constitution.

However, putting these guarantees to practice has not been automatic or easy; an ample participation by the Supreme Court has been required, that through its interpretation of several articles of the Constitution has made valid the constitutional prerogative in many concrete cases.

At both the federal and local level, the judicial guarantees are often disputed between the government levels resulting in the deprivation of the one that have it. Besides the "writ of amparo" as well as the constitutional controversies and unconstitutional actions, the Supreme Court has established important precedents in which it has been able to mould these guarantees and contribute to the consolidation of a regime of respect of those.

In this sense, it has been interpreted the reach and content of these guarantees to the judges of the state jurisdictions, the local electoral judges and the land reform jurisdiction, as well as the administrative jurisdiction.

One of the established criteria that is often considered the most important in this matter, according with the right of a judicial official to access to a new period in his job by virtue of ratification, is the duty that has the government branch in charge of ratification of evaluate the performance of the judicial official in question to verify the quality, efficiency, honesty and competitiveness that belongs to him in order to deserve being elected for a new period.

This evaluation stands as an important fundamental judge right, because he knows that if he does his job as it should be done he will have the indisputable right to continue exercising his charge without being removed, but, at the same time, society has the right to know the motives that prompt a judge to continue in the charge or to know why he does not deserve to do it. Society also has the right that their judges should be evaluated, for this reason this guarantee contains a double benefit.

The constitutional order of independent judges in every day life has been made possible by the interpretation that the Supreme Court makes of judicial guarantees and how these should govern public life. For this reason, I consider that through those channels the judiciary has collaborated of the nerve center of the State, which is the best function for the apparatus of justice.

It is impossible to understand the contemporary Rule of Law without a system of justice in which the integrated judges have in their favor a framework which guarantee their function and their persona, which translates at the same time into a scene of legality and judiciary for the society.

III. THE HIERARCHY OF RULES BETWEEN INTERNATIONAL TREATIES AND THE CONSTITUTION

Other aspect in which the judicial dialogue of the Supreme Court with society has been fundamental for the construction of a Rule of Law is in the definition of the manner in which the national judicial order relates and incorporates to and with the international judicial order.

It is well known that the creation of judicial rules cannot be considered as an exclusive function of the State because there are external factors that concur with the State in its generation. In this context, the judicial branch plays a transcendental role in the reception, admission and application processes of international rules within the order of the national legal structure, because it belongs to the courts to decide, in the final instance, the form and terms in which the regulation will be incorporated in the national legal order and, in particular, defined a delicate topic: the normative hierarchy that the international treaties will have regarding the internal legal order, the decision of which will depend greatly on the protective reach of the treaties and the manner in which they are applied.

In what had been called a poor translation of the United States supremacy clause, article 133 of the Political Constitution of the United States of Mexico establishes:

This Constitution, the laws of the Congress of the Union that emanate therefrom, and all treaties that have been made and shall be made in accordance therewith by the President of the Republic, with the approval of the Senate, shall be the supreme law of the whole Union. The judges of each State shall conform to the said Constitution, the laws, and treaties, in spite of any contradictory provisions that may appear in the constitutions or laws of the States.

The Supreme Court has not overlooked this argument, even though there is still no complete definition with respect to it. The importance of the subject has changed into a difficult solution.

Traditionally, the Court had sustained that the international treaties and the federal laws derived from the Federal Constitution, had the same normative hierarchy, meaning, that the international law had not superseded the domestic law, so they were equal. Although the binding effects of the treaties were recognized, they were not been treated as superior to the laws of Congress emanated from the Constitution, but the Court conferred the same authority, in such a way that was possible and admissible that the federal laws contradicted international rules.

But in 1999, the Supreme Court interrupted the abovementioned jurisprudence—an interruption that the Mexican legal community received very well. The new and current criteria, that is not obligatory because it is an isolated criteria that does not constitute jurisprudence, maintains that international treaties are placed above the federal laws and in a secondary plain with respect to the Federal Constitution.

Under this interpretation, we consider that the international obligations are assumed by the Mexican State as a whole and compel all the authorities before the international community, among them the Legislative and Judicial. For this reason the president of the Republic is authorized to sign international treaties in his position as Chief of State, and the Senate, as the representative of the federal entities, in order to ratify them.

Today, two "writs of amparo" are pending of resolution at the Supreme Court that take up again this theme because in them lies a contradiction between the North American Free Trade Agreement and certain national rules of tariffs. To resolve this matter, the Supreme Court once again should be pronounced about the hierarchy of the treaties within the Mexican judicial order and determine which rule should prevail in cases of conflict between federal laws and international treaties. Without a doubt, the subject is not only current, but interesting and difficult.

Because of globalization, regional integration is a characteristic of the new world order, but the economic and commerce world model is presented along with a new world order characterized by its supranational, internationally recognized values and necessary in relation with the human rights and democracy as standards to which the constitutional models should conform, as well as the creation and recognition of international jurisdictions.

This new reality has imposed on the judicial agenda the necessity of redefining the structure of the pyramidal judicial systems that place the rules in a situation of supra-subordination of with others and determine the relationships between national and international law. Now, it should be determined how interact in the same case rules that belong to different judicial systems and organize the direct application of the rules of international rights in respect to the national and determines how far the content of the national right conditions the enforcement and the application of the international right.

On the same topic, some cases recently decided by the Supreme Court are examples of the legal problems that arise from the new world judicial order and the judicial dialogue that tries to contribute to the building of the relationship of internal and international rights, in particular in what pertains to the protection and the defense of human rights.

I’m referring to well known cases like that of the "amparo" of Cavallo, the judgment of Nassar Haro, and the challenge that was made to the Treaty of the Forced Abduction.

Ricardo Miguel Cavallo acted as a military general in Argentina during his dictatorship, and the crimes of genocide and terrorism were attributed to him for the many incidents that occurred between 1976 and 1982 against people considered as opposition to his military regime. He was detained in Mexico and extradited to Spain where he would be judged for these crimes under the "universal jurisdiction", advanced the "writ of amparo".

In June of 2003 the Supreme Court decided this case and gave the protection in one side² and denied it in the other. Cavallo alleged in his defense that the crimes that he was charged with were militaries and that he, as a member of the armed forces, was only obeying orders.

In application of the American Treaty to Prevent and Sanction Torture and the Convention Against Torture and Other Treatments and Cruel, Degrading and Inhumane Punishments, the Supreme Court concluded that did not matter if military orders came from superiors or if special circumstances supposedly exist during a state of war, or an unstable political environment or whatever other political emergency which leads to the commission of these crimes, the Court stated that when dealing with crimes against humanity, the international legislation does not recognize the defense that one was only following orders by superiors that would take the responsibility away from those who act upon them.

In addition to the aforementioned, the Supreme Court enforced article 2 of the Covenant to Stop and Sanction Acts of Terrorism in Crimes Against People and Connected Extortion, signed in Washington on February 2, 1971, states as crimes of international law, whatever their motive, the kidnapping, homicide and other actions against life and the integrity of people to whom the State has a duty to protect according International Human Rights, like the related extortion with these crimes; in applying this treaty, the Supreme Court decided that it was not feasible to recognize the natural state of war as a defense to the crime of terrorism, because in said convention the treaty established that this crime must be considered as common in the international community.

It can be appreciated, in this case, that the Supreme Court decided the trial by direct application of the abovementioned international treaties, but that it also tried to harmonize the dispositions of the international law with the dispositions of the federal legislation and verified its accordance with the constitutional law.³

In November of that year the First Chamber⁴ of the Supreme Court of Justice decided a criminal case against various former agents of the Judicial Police from the state of Nuevo Leon, from the Federal Direction of Security and Personnel from the Mexican Army, among them was Miguel Nassar Haro, accused of having committed acts punishable by agents of the State against those opposed to the governmental regime in the decade of the 1970s, in particular, the disappearance of Jesus Piedra Ibarra.

In Mexico, these historic occurrences have not been forgotten by the general public.

The district judge that first received the case held that the criminal prosecution was moot for the probable responsibility for the commission of the crime in virtue of the time that had passed since Jesus Ibarra disappeared and the date that Nassar Haro was apprehended.

However, the case was heard by the First Chamber of the Supreme Court, where it upheld an important criteria for the application of international treaties in that matter, coinciding with the stipulation of article II of the Inter-American Convention on the Forced Abduction as adopted by Mexico in May of 2002, the crime being the violation of habeas corpus is a crime with a continual nature and the prescribed time limit does not start when the actor committed the crime against the passive subject, but it should start at the date the victim becomes free.

In this case, it was only certain that Jesus Ibarra was detained and interrogated in 1975, but it was not known whether he had been freed or put under the control of other authorities, so that it was decided that the commission of the crime had not stopped and that neither was it possible to begin running the statute of limitations of the crime and for that reason it was not possible that the statute of limitations had started to run on the crimes for which the accused had been charged. This lead to his detention, which in Mexico constituted an action without precedent; today he is still under process for these crimes.

A couple of months ago, the Supreme Court reiterated this interpretation when it decided a controversial constitutional promoted by the Head of the Federal District Government against the reserve and interpretation made by the Senate of the Republic in its adoption of the Inter-American Treaty on the Forced Abduction, from the city of Belem, Brazil, in 1994.

As relevant of the fact that the Supreme Court reiterated the criteria with respect to the crime of forced disappearance of people which was, in my opinion, is that the Court admitted the possibility of challenging the constitutional controversies dealing with the interpretation of international treaties was opened.⁵

These three cases are a good example of how national and international rights interact in the judicial process.

Finally, I would like to point out two great efforts that were recently being undertaken by the Supreme Court that highlight important aspects of contemporary judicial dialogue.

The first of these is the announcement of a consultation for a new "Ley de Amparo" (Amparo Act) deriving from a bill that is related to what I have already commented. This new bill, currently being discussed in the Senate, proposes that, through this judgment, required human rights can be recognized by international treaties, proposing that in this manner the protective scope will be broadened.

This proposition considered that in the realm of the protection of the constitutional judgment, the comparative right should be extended to protect anticipated human rights issues through diverse international instruments, and, in addition, it has been given constitutional hierarchy or it has established the content of these instruments as guide to the interpretation of the fundamental rights placed under the power of national courts.

The proposition insists that this reform will not affect the hierarchical relationship between the Constitution and the international treaties because the international treaties continue to remain inferior to the Constitution, but what is relevant is the proposition that defines and amplifies the human contents to which the State should subordinate its actions, which will allow the consolidation of the Rule of Law and a more progressive requirement of internationally recognized rights due to the judicialization of their protection.

The second of the spaces opened by the Supreme Court is the National Consultation for an Integral Reform and Coherent of the Impartial System of Justice in the Mexican State. This is a convocation that came from the Supreme Court itself in an effort to diagnose the current list of problems presented under the title of justice and incorporating the whole of society in a search for solutions, more than 5 thousand propositions were received about aspects that, according to the criteria of society, should be reformed.

This discussion lead to intense journeys celebrated during almost a year of work, but only barely begins the stages of analysis and diagnosis. I believe that, in an effort to expose the judicial dialogue in my country, the reference to this national consult is obligated.

This outline that I have attempted to summarize here is obviously limited; however, I think it is useful to think about the fundamental aspects of the current dialogue involving the Mexican judiciary—both in the national and international community.

Globalization has changed the judicial agenda in a significant way and has introduced new and more complicated problems to the jurisdictional arena.

These types of conflicts that show up in complicated and heterogeneous societies, due to the impact of globalization, present challenges to the courts, among them is to learn how to differentiate their performance in function of those who come to them looking for the protection that the international instruments have granted, but, at the same time, they must be prepared to concede better access to justice in traditional conflicts.

For all of the forgoing, I say farewell to you all, and the most important commitment of the Mexican judiciary today is to understand its own situation, because only through that will it be in a condition to overcome the challenge that the new world order will impose.

Notes
* This paper was presented at the Texas Internacional Law Journal Symposium, at the Texas School of Law in Austin, Texas, on September 10, 2004.
** Associate Justice of the Supreme Court of México. I would like to thank Mr. Manuel González Oropeza for his valuable collaboration in the translation of this article.
1 Constitutional provision peculiar to Mexico which resembles United States writs of prohibition, certiorari, injunction, and habeas corpus.
2 The Supreme Court denied the protection detailed in international ordinances, in which his extradition was requested by the Kingdom of Spain and was granted on the basis of the crime of torture determining that the crime had fallen into the Statute of Limitations. The complains were made in accordance to the Extradition and Mutual Assistance in Criminal Matters Treaty between the United States of Mexico and the Kingdom of Spain signed on November 21, 1978, published in the Official Register of the Federation May 21, 1980; the protocol of June 23, 1995; published in the Official Register of the Federation on March 19, 1997, in which the treaty in question was modified and the covenant for the Prevention and Sanction of the Crime of Genocide on December 8, 1948, as well as the act of application consistent with the treaty of February 2, 2001, by virtue of which the Secretary of External Relations agreed to the extradition of the complainant to the Kingdom of Spain. The Court confirmed District Judge decision which established that the instruments were not unconstitutional.
3 It must be added that two other justices and me voted against the majority because we disagreed with the concession of the extradition for crimes of genocide that were being attributed to the complainant, since we consider that the protested act had occurred in violation of constitutional rules and the Convention for the Prevention and Sanction of the Crime of Genocide. We considered that according to the law, the complainant could be judged for the crime of genocide only by an Argentine tribunal or by the International Penal Court, without pertinent estimation of the application of principals of "universal justice".
4 The Mexican Supreme Court of Justice is integrated by 11 judges, one of them is the President of the Court and the other 10 are divided in two Divisions. The First Division is in charge of criminal and civil law cases, and the Second Division is the responsible for administrative and labor law cases.
5 The challenge was based on the consideration that the international treaties are general rules, because the Constitution place the treaties, together with other rules, such as the Supreme Law of the Union, as long as they are in accordance with the Constitution; besides, the treaties have the characteristics of generality, permanence and abstraction of the general rule. So, being these treaties, general rules must be considered susceptible to be the object of constitutional control throughout the constitutional controversies since the fundamental letter established inside the impugnable acts that followed this way making express mention of the "general dispositions" that include the treaties. The full meeting of the Supreme Court argued that such criteria was in accordance with the historical tendency of amplifying the cases of constitutional controversies that occur between the powers, branches or entities that are pronounced by way of their acts or general disposition because the original constituent, as well as the reform organism of the Constitution pretended with the establishment in the constitutional law of the figure of the constitutional controversy and the competency of the Supreme Court in this regard, solve the conflicts that appear between different levels of government given faculties to the Supreme Court to, if it is the case, invalidate the acts of government that are contrary to the Constitution. Also, they signaled that in different times the reviewing organ of the constitution has transformed the figure of the constitutional controversy to adapt that to the social evolution of the country and for that reason the juridical tutor of the constitutional action is not exclusively for the protection of the attributes that the political constitution of the United States of Mexico confer upon the branches constituted by the State in order to guard the Federal System, that has been amplified in order to preserve the structure, division and competency that they are subject to as selected authorities, and in general to preserve the established order in the Federal Constitution.