JUDGES ANS SOCIAL RIGHTS IN MEXICO: BARELY AN ECHO FOR THE POOREST*
Rodrigo GUTIÉRREZ RIVAS**
Original Text (Spanish) PDF
SUMMARY
I. Introduction. II. Social rights in Mexico: unfulfilled promises. III. Legal interest or political interest? IV. Judicial centralism. V. Some concluding points.
I. INTRODUCTION
The purpose of this work is reflecting on the relationship in Mexico between judges and social rights in the uncertain process of democratic transformation the country has gone through during the last decades. I start from the hypothesis according to which in our process of political transformation, the governing elite has privileged the institutional modifications putting emphasis on the adjustment of electoral and partisan regulations.
Given the "transition to democracy" has been led by the parties, the adjustments and transformations of the political and legal system have aimed to guarantee more competition between the parties. Although it is true that the Judicial Power has gone through important reforms (1996), these have intended to strengthen its institutional structure, its internal organization and its independence from other branches. However, the debate about its intervention as an institution that protects human rights has not been quite privileged.
In a summarized formula we could say that the legal and political transformations the country has gone through in order to reach a higher level of democratization, have been oriented towards achieving greater stability within the institutions but not in the people. The relationship at present between the Tribunals and the social rights is a proof of this. In the country, the Judicial branch has made few efforts to offer authentic guarantees of legal protection of the population’s basic material needs. The latter, in spite of the inclusion of some of these needs in the Constitution at the beginning of the past century.
The latter is partly explained by the fact that in Mexico there is no tradition of guarantee of social rights. During almost all the 20th century, the model of authoritarian State based in a single-party-system established corporative control mechanisms that were incompatible with the idea of universal social rights. The public branch discretionally granted needs such as health, housing, work and education to the sectors with the most mobilization capacity in exchange of support and votes.
At present, such inertia is useful for the transformation model, towards a new democracy, that has been imposed in the country. Although this model has achieved a greater competition between the parties, it has allowed a neoliberalization of the economic and social system, placing again the idea of the free market as the regulator axis of the relations between the citizens. The transformation reached in Mexico from a single-party system to one of competition between parties, took part within the framework of the severe plans of structural adjustment that have been encouraged by the paradigm of market economy imposed as hegemonic project since the 1980’s.
The Mexican Judicial Branch seems to support this liberal project. Nowadays, such institution is far from being able to become the voice of the least favored ones. On the contrary, on the basis of the doctrine of social rights as programmatic guidelines and the procedural objections that impede an effective protection of these vindications, the Judicial Branch seems to be another obstacle in the fight to the construction of social rights as universal rights, exigible and interdependent.
The big problem is that the neoliberal model has created a scenario of political instability because it has caused an increase in poverty, unemployment, a large concentration of wealth, and a growing exploitation of the working class. This has evidently raised the levels of social violence, since everyday delinquency to expressions of micro-insurgency witnessed throughout the whole country.1
Within this context, the acknowledgment of social rights as exigible rights is not only important but also urgent. If the people’s basic needs (housing, health, education, work), are not acknowledged as fair and exigible demands, opening a channel to try to formulate a new pact that is more jointly liable with the citizens, the accumulated social pressure and the despair towards poverty2 shall break out social and political forces interested in modifying the current status quo.
In this sense, this draft intends to analyze the three biggest obstacles that have hindered the real protection of social rights. In the first section we find the predominance in Mexico of the theory of social rights as programmatic guidelines. This position has hindered the construction of the content of the rights, and thus, has obstructed their effective protection.
In the second section we analyze the theory of the legal interest. It shows how this theory has worked as a procedural obstacle that allows the Judicial Branch to declare inadmissible those demands on rights that are not regulated as such.
Finally it is demonstrated how these two circumstances, which characterize the Federal Judicial Branch performance, extend to all the local judicial branches because of the judicial centralism that has been imposed in the country.
II. SOCIAL RIGHTS IN MEXICO: UNFULFILLED PROMISES
The Mexican Constitution of 1917 was one of the first ones in which a series of social rights demanded by the revolutionary movement of 1910 were raised to constitutional level. However, this occurred before the apparition and extension of the social State model.3 Therefore, the lack of political and legal structures that support such paradigm of State hindered the implementation of the effective protection of those interests.4 Although housing, health and education among other demands were incorporated to the Constitution, and the legislator developed some of them, they were never conceived as justiciable rights but as general guidelines of orientation to develop public policies.
As Cossío points out, in Mexico a conception of the Constitution bound to the Revolution’s postulates was developed. The norms of social nature were conceived as programs the State had to implement in order to bring the revolutionary postulates into force. The social rights were not conceived as legal norms but as "product of the Revolution".5
This tradition defines the story of the Mexican constitutionalism, and the apparent progress at the beginning of the century regarding social rights became a reversal by the end of the century. Nowadays we have a very weak system of judicial protection of social rights. The State’s branches —including the Judicial— still consider them as action guidelines to orient public policies and not as fundamental universal and interdependent rights.6
Although this is a situation that also occurs in other countries, in Mexico it is accentuated. The corporative body organized by the party that governed for more than seventy years, defined the relation between power and the sectors that claimed those rights. The party in the power, on the basis of a clientelistic system, granted such demands discretionally to the sectors with the most capacity of pressure and mobilization. However, it never defined clearly the normative contents of the latter neither it granted them as prerogatives that could be claimed by the citizens.
If we analyze the legislation used to develop such rights, we can see that it creates organs of the public administration and regulates its obligations and attributions. This way, these organs of public administration are given the possibility of choosing the means it judges adequate to fulfill these rights. These organic laws are not an effective warrant of protection, and they do not entail clear obligations for the State, that could be claimed by the citizens. Therefore, the subject is characterized by large spaces of discretionary actions propitious to irrational management, illegal acts and even corruption.7
The theorists of Law also collaborated in the doctrinal construction of the social rights as programmatic declarations. The predominant doctrine, taking a conservative position in defense of the statu quo, consolidated the theory according to which such aims could not be demanded before the Judicial Branch through the trial regarding constitutional guarantees.8
The following words exemplify this position:
…while the individual guarantees are directly exigible by the one who is governed and in case they are breached they have the ideal procedural means to vindicate them, which is the trial regarding constitutional guarantees, the social guarantees have indirect execution. Indeed, this last type of constitutional precepts require the expedition and enforcement of the secondary laws and specifically, of procedural pleas where to establish the violation to their contents.9
This doctrinal position was —and still is— very useful for a system that is not compelled much with legal clarity and the true respect for the citizens’ rights. The fact of not taking the rights seriously makes easier for power to use them as a political discourse that legitimizes a not quite democratic system. In an authoritarian system as the one imposed in Mexico during three quarters of the 20th century, this situation has a clear explanation. At present it is had to understand the reasons that sustain this position in a system that intends to become more democratic.
On the other hand, what is most important to underline is that this same argument was developed —and continues being developed— by the Judicial Branch in its interpretation, pattern that is still predominant.10 If we review the interpretation made by the Supreme Court of Justice we discover that this Branch does not conceive the social rights as exigible rights before the public organs.
If it is like this, it is understandable the reason why the Judicial Branch has not collaborated in the construction of the contents of these rights. Such branch, based on the thesis of the structural differences between civil and social rights, has not made any effort to try to determine the minimum content that would entail the fact of having within the Constitution the right to housing, health, education, etc.
On the other hand, as if in Mexico had never subscribed the Economic, Social and Cultural Rights Pact, the Judicial Branch in Mexico hardly uses such instrument (at present with a superior level with respect to all the laws) to try to extend the protection of the social needs that had been given constitutional level. It is almost impossible to find a verdict on this issue that turns to the General Observations of the Economic, Social and Cultural Rights Committee. The Judicial Branch in Mexico has shared with other branches a deeply nationalist self-referring vision that views with skepticism the use of international instruments and could even consider them as breaching the national sovereignty.11
All these circumstances prevent the Federal Judicial Branch in Mexico from being an institutional space where the voice of the least favored ones produces some echo. The constitutional positioning and interpretation that until our days predominates in terms of social rights, avoid considering such branch, as an ally in the protection of the basic material needs.
III. LEGAL INTEREST OR POLITICAL INTEREST?
In Mexico, the most important instrument of protection to protect fundamental rights is the trial regarding constitutional guarantees (juicio de amparo). This is not the only jurisdictional means that allows the citizens to protect themselves directly from the violation the authorities commit against their rights. It is an institution born in the half of the 19th century (in the Constitution of Yucatan of 1841). Its scope began to be defined since the first law of amparo*** in 1861. At the beginning it was a novel instrument that throughout the years was extended to other Ibero American legislations,12 including the Spanish one. Nowadays, paradoxically, the Mexican amparo is perhaps one of the least guaranteed from all those countries. Several historical and political circumstances have impeded in Mexico that this instrument updates its protective capacity as it has happened in other places.
A first consideration I consider necessary to do is that such instrument has acquired at present a quite complex, quasi-baroque, legal structure, which embraces several procedural instruments. Underneath its appearance of unity, the amparo is actually a federation of instruments13 that demand a very specialized technical knowledge for its execution. This already entails a difficulty for all those people who lack sufficient economic resources to hire a specialized lawyer able to defend their interests before tribunals. This is the case of those people who are interested in protecting their social rights. Health, food, education, housing are traditionally interests and needs that vindicate as rights by the sectors that have been exploited and marginalized by the logic of the capital, by the economically powerful sectors.
However, in addition to this condition of elite resource that limits its utilization to the powerful sectors of society, what we want to underline is a structural circumstance that characterizes this instrument of protection as a restricted one. One of the elements that obstruct more the guarantist potentiality of the trial regarding constitutional guarantees (juicio de amparo) and especially the protection of social rights, is the limited legitimacy to promote such resource. In Mexico only those people who can demonstrate having a legal interest may use this instrument of protection.
Here we shall stop for a moment to explain how the tribunals have understood the concept of legal interest and how it obstructs the protection of social rights in the Mexican legislation.
According to the Supreme Court of Justice’s jurisprudence (maximum interpreter of the Constitution) the legal interest is nothing but what the doctrine calls subjective law, that is, the "…power or attribution of exigency, whose institution consigns the objective norm of law". Therefore —states the Court— there is no subjective law nor legal interest, when the person has only one power which cannot be imposed coactively to another subject, that is, when there is no power of imperative exigency". There is no legal interest either when a norm does not establish in favor of any person the power to demand. This means that when there is a law that determines a situation that may be used by any subject who consider it benefic, should this same law not grant the power to claim coactively its exercise, then there is no legal interest but a simple interest.14
In order to consider to citizens as having a legal interest we shall be —according to the Court’s criterion— before a tutelary right by the legal order in an express way. This criterion has been sustained in a reiterated way by the maximum tribunal. The following theses show it:
LEGAL INTEREST, NATURE OF THE. Although the complainer expresses that the claimed action affects his or her economic interest, the latter is different from the legal interest. Even when it is true that every situation favorable to the satisfaction of a need constitutes an interest, it cannot always be qualified as of legal nature, since in order to have this character, the objective law through one of its norms shall guard it. Should it not do so, the mere material interest cannot be protected by the guarantee trial.15
And this one too…
LEGAL INTEREST AND ECONOMIC INTEREST. DIFFERENCE. A difference shall be established between legal interest, as a condition for the legal basis of the trial regarding constitutional guarantees (juicio de amparo), and the economic damage suffered by an individual or group of individuals for the execution of the claimed action. This last damage is not enough for the trial regarding constitutional guarantees to proceed, because the interests of a subject could be affected and his legal sphere not be affected. A person’s legal interests emerges when the claimed action is related to his legal sphere, understanding the latter as the group of rights and duties owned by a subject or group of subjects, derived from the norms of objective law. Should the impugned laws not refer to any Law pertaining to the complainer’s legal sphere, he or she would lack legal interest to impugn them in the trial regarding constitutional guarantees, and should he do so, the unlawful nature of the trial shall be declared.16
Therefore, in order to a subject have legal interest and consequently, use the amparo to protect himself against the violation of his rights, it is required: a) the existence of a right established in a legal norm (objective law); b) the legal entitlement of such right by the person considered affected; c) the faculty of exigency for the fulfillment of that right, and; d) the correlative obligation to this exigency power.17 Should these four hypotheses not gather, and then it is probable that the tribunals that know about the trials regarding constitutional guarantees declare it unlawful. The Law of Amparo in its article 73.5 states as cause of unlawfulness of this judgment the fact that the complainer does not prove successfully the legal interest.
This circumstance leaves out of the jurisdictional control’s scope a large quantity of actions carried by the authorities, since the citizens by not being able of proving the legal interest, cannot impugn them. This is the case of many social rights, which since they affect the communities’ interests in a collective way, and thus, lacking a legal interest the way the Court understands it, they cannot be object of protection by this procedural institution. This impediment would not be serious should other means to protect collective rights or diffuse interests exist. However, the trial regarding constitutional guarantees is the only procedure included in the Mexican constitutional legislation to directly protect fundamental rights.
The situation gets even worse because the affected is asked to demonstrate having such legal interest. That is, the judge is not empowered to inflict him from the elements presented in the expedient.18
All these circumstances entail a notorious deficiency in the system of protections of rights in Mexico. If we see the progress made in other legislations regarding the possible protection of social and collective rights, the distance that separates us from such legislations is evident. From this procedural point of view, our system seems to be anchored in the 19th century, and their foundation is still the protection of individual rights.
What is even worse, in the origins of the amparo, when its scope was being defined, verdicts were issued admitting an ample legitimization and protecting collective interests. In 1872, the Court solved an issue against the authority that intended to demolish a gateway in a small square. The Court granted the amparo even when a person was not directly affected, but the architectural environment in which lived the person that presented the lawsuit. This way, not only the individual who was considered affected was protected, but also the neighbors and the collective space.19
Therefore, it is false that the concept of legal interest emerged simultaneously to the amparo. This concept was consolidated during the period in which Ignacio Vallarta became president of the Court. Since that moment certain issues that accepted an extensive legitimization to present the amparo, stopped being solved, and the doctrine of the legal interest in its most rigid version was built. This may find an explanation in the fact that Vallarta presided the Court during the period of Porfirio Diaz’s dictatorship. The construction of the legal interest could serve as an instrument that allowed, on the one hand, subordinating the decisions of the tribunals before the political branch, and on the other, privileging the actions of the State organs before the particulars. It is not necessary to make a deep analysis in order to discover that the idea of legal interest restrains the possibilities of protection of the citizens against power, as well as those of control of the jurisdictional organ against authority.20 These same reasons allowed these theses to survive during the whole 20th century in Mexico. They were also quite useful to the party dictatorship imposed during more than seventy years.
Nowadays a discussion has started, both in theory and in the judicial decisions, regarding the inconvenience of continuing sustaining this rigid position. We shall say, in compliance of some judges and magistrates, particular verdicts and votes have been issued that intend to extend legitimization in the amparo. However, they are isolated efforts that do not entail a radical rupture with the classical interpretation of the Court about legal interest.
Perhaps the most important effort achieved in order to remove this doctrine is the one carried out to elaborate a project of new Law of amparo.
IV. JUDICIAL CENTRALISM
Mexico is conformed in a federal State in which 31 free sovereign states live together.21 Like in any other federal State, the autonomy of these states is not absolute; however, each state has local judicial powers that issue their verdicts on the basis of laws produced by local legislators.
This circumstance shall allow that in such spaces of autonomy, the jurisdictional decisions be different to those established by the criteria of the federal Judicial Branch. Regarding social rights this would be an opportunity for other tribunals in different states of the country to protect the rights that are not protected in the federal Judicial Branch for the reasons explained above.
Nonetheless, the tendency to centralize power in Mexico also has its variant in the centralization of justice. Until now, the autonomy local tribunals may have to establish different criteria to those of the federal Judicial Branch, is quite reduced. This is mainly caused by the utilization of the trial regarding constitutional guarantees (juicio de amparo) throughout history.
As I have already mentioned in previous paragraphs, the amparo is a federation of instruments. Among its possibilities is to revise and modify the verdicts of the local superior tribunals. The so-called judicial amparo (direct amparo) is the means through which the federal Judicial Branch controls the decisions of the hundreds of regional tribunals.
They have permanently denounced this limitation of the local tribunals’ autonomy. The complaints towards the Federation’s control on its decisions are permanent. As an example we have one of the many declarations issued by the Local Superior Tribunals:
It is undeniable that the territorial distribution of political power, that is, the establishment of a composed or federal state —as the Mexican— where there is a constitutional recognition of the political power to territorial entities that conform the State, shall have consequences not only in the subsequent configuration of the legislative and executive branches, but also in the judicial branch that operates in both systems. This is what is known as judicial federalism…but this system began to modify when the Supreme Court of Justice accepted, specifically since 1869, the impugnation through the juicio de amparo of the local tribunals’ verdicts issued in execution of the also local legislation. By means of such jurisprudence, the impugnation of the judicial resolutions of all the tribunals in the countries was gradually concentrated in the Supreme Court of Justice of the Nation, subordinating the jurisdictional organs of the Federal District and the states, to the highest tribunal in the country, losing this way their constitutional autonomy.
As a response to this claim, the Judicial Branch of the Federation has argued the need to uniform the jurisprudence in the country. This, it is said, entails a guarantee of certainty and legal security that strengthens the principle of equality. Regarding the possibility of the emergence of divergent and contradictory interpretation criteria that would mean certain levels of legal uncertainty, the Court considers that through the juicio de amparo the jurisprudence is uniformed.
The legal security is protected because the different federal tribunals, with jurisdiction in one same state, apply the same criteria of interpretation to the cases presented in that entity.22 Should this be this way —continues Serna— we should look for the reasons why these practice pervades in Mexico. The reasons the authors states are: a) the lack of trust the federal Judicial Branch shows towards the local judges23 and b) the amparo as a mechanism of counter-power before the local governors.24
Regardless the reasons behind the permanence of this model, what is undeniable is that the local tribunals are restrained to build their own criteria and their own jurisprudence, different to what the federal justice establishes, which practically impedes creative interpretations to take place in local seats.25
With respect to social rights, this situation does not change. If in any case a guarantee judge were compelled with the interest of the least favored ones and intended to use the social rights as authentic rights, he would have the federal Judicial Branch watching that the principle of legal security of the Mexicans is not breached.
V. SOME CONCLUDING POINTS
Of all what was mentioned here, we shall do some final reflections as possible discussion topics. The purpose is to try to foresee a path that allows the Judicial Branch to transform into an institution that collaborates with the real —not only formal— democratization in the country.26
In this sense, the first thing to underline is the importance that the Judicial Branch continues granting a minimal content to the social rights. In order for this to happen, the thesis according to which social rights belong to a different species than that of civil and political rights shall be eradicated. From all the possible fronts (academy, litigant lawyers, organizations of rights, groups of affected, etc.) it shall be insisted that social rights are rights whose nature is equal to that of civil and political rights; they are not lines of orientation for the public branches. If it is like this, such rights shall begin to be protected in the judicial seat.
To reach this, it is necessary to bring an end in Mexico to the legitimacy that the Constitution, as well as the law and the jurisprudence, impose the citizens in order to be able to present the trial regarding constitutional guarantees. Thus, it is necessary to modify the concept of legal interest and use a broader legitimization that allows the citizens to present the resource when their interests, and not only one of their rights specifically recognized in a secondary law, are affected.27
On the other hand, it is indispensable to begin discussion both within the academy and in the judicial branches, about the possibility of creating procedural mechanisms that adjust to the social rights’ needs. In Mexico there is no possibility of protecting group interests, except for exceptional cases. Given that many social rights are related to social collective claims and needs, it is necessary to reflect about the importance of creating new procedural means according to the social needs.
Finally, it is also important to discuss and clarify what are the true reasons for which the federal Judicial Brand exerts control over the local tribunals. Evidently this situation inhibits the jurisdictional creativity existing in the different regions of the country. We ought to know, for the sake of the local branches’ independence and their creative potentiality, whether the judicial amparo is fulfilling its function of protection the rights of Mexico’s citizens or if it is an obstacle to them.
Notes
* Translated by Ingrid Berlanga Vasile.
** Researcher at the Legal Research Institute.
1 At present, the country is divided by different expressions of spontaneous resistances (sentries, seizure of municipal presidential offices, police force lynching) against the public branches or transnational firms that affect the interests and basic needs of the peoples.
2 Perhaps one of the factors that has impeded an articulated and shared expression of resistance towards oppression and marginalization is the brutal immigration of more than twenty million people towards the United States. Migration towards this country has not only allowed reducing the interior social pressure but it has now become the most important source of income in the country; even more important than oil.
3 It was until 1949 when the Fundamental Law of Bonn granted the constitutional meaning to the concept of social State of Law it now has.
4 Bökenforde, Ernst-Wolfgang, Escritos sobre derechos fundamentales, Nomos, Baden-Baden, 1993, p. 72.
5 Cossio, José Ramón, "Los derechos sociales como normas programáticas y la comprensión política de la Constitución", in Rabasa, Emilio, Ochenta años de vida constitucional en México, Mexico, Cámara de Diputados-UNAM, Instituto de Investigaciones Jurídicas, 1998, p. 296.
6 As Cruz Parcero states: "The fact that the legal transition in our country has dodged or even hidden and hindered such discussions, has contributed enormously to turn obsolete many of the constitutional precepts that consecrate social rights…". Cruz, Juan Antonio, "Los derechos sociales como técnica de protección jurídica", en Carbonell, Miguel et al. (eds.), Derechos sociales y derechos de las minorías, Mexico, Porrúa-UNAM, Instituto de Investigaciones Jurídicas, 2001, p. 89.
7 Ibidem, p. 103.
8 In Spanish "juicio de amparo" (N. of the T.). Authors such as Ignacio Burgoa, José Campillo, Francisco Ramírez, Alberto Trueba Urbina, are some that share this predominant position in the Mexican legal doctrine. They defended this position in their manuals of Constitutional Law and fundamental rights.
9 Rojas, Ariel, Las garantías individuales en México, Mexico, Porrúa, 2002, p. 582; Carbonell, Miguel, Los derechos fundamentales en México, Mexico, CND-UNAM, Instituto de Investigaciones Jurídicas, 2004, p. 778.
10 Although we cannot leave aside the fact that there are several verdicts that have made progress in rights’ justiciability, for example:
"Health. The right to its protection, that as an individual guarantee consecrates article 4 of the Constitution, covers the reception of basic medicine for the treatment of diseases and its supply by the institutions that give the respective services.
The General Health Law, ruling the right to health protection that article 4.4 of the Constitution consecrates, establishes in its articles 2, 23, 24.1, 27.3 and 27.8, 28, 29 and 33..2, that the right to health protection has, among other purposes, the enjoyment of health and social assistance services in order to satisfy the population’s needs; that by health services is understood as those actions made to protect, promote and restore the health of a person and of a collectivity…". Thesis P. XIX/2000 of the Supreme Court of Justice’s, Pleno.
11 This situation does not occur with commercial and free trade agreements (NAFTA, as an example) which Mexico has subscribed in the last decades with several countries in the world.
*** "Amparo" means defense, it is a summary proceeding which serves to guarantee constitutional rights (N. of the T.).
12 The Law of amparo is actually included in fourteen Latin American constitutions.
13 Fix-Zamudio, Héctor, "Breve introducción al juicio de amparo mexicano", in Fix-Zamudio, Héctor, Ensayos sobre el derecho de amparo, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 1993, p. 30.
14 Isolated thesis, 7th epoch, Pleno, Semanario Judicial de la Federación, vol. 37, 1st part, p. 25.
15 Second Courtroom, 5th epoch, Semanario Judicial de la Federación, vol. CXX, p. 568.
16 Third Courtroom, 7th epoch, Semanario Judicial de la Federación, vol. 193-198, 4th part, p. 80.
17 Zaldivar, Arturo, Hacia una nueva ley de amparo, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2002, p. 44.
18 This was established by the Second Courtroom in the jurisprudential thesis "Legal interest, affectation of the. It shall be feasibly roved. In the trial regarding constitutional guarantees, the affectation of the legal interest shall be proven feasibly and not be inferred only through mere presumptions". Second Courtroom, 7th epoch, Semanario Judicial de la Federación, vol. 205-206, 3rd part.
19 Cabrera Aceves, Lucio, "Ponence of Lucio Cabrera Acevedo", Simposium: The Mexican Attorneys and the Ombudsman", Mexico, CND, cited by Zaldivar, Arturo, Hacia una nueva ley de amparo, cit., note 17.
20 The hypothesis of the relation between authoritarianism and the construction of the concept of legal interest in Cossío, José Ramón and Zaldívar, Arturo, "¿Una nueva ley de amparo? III", Este País, Mexico, no. 124, July 2001, p. 45.
21 Article 40 of the Constitution characterizes them this way.
22 Serna, José María, Federalismo judicial: revisión crítica de los distintos argumentos del debate sobre el amparo casación en México, working paper, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2002, p. 10.
23 Ibidem, p. 13.
24 Ibidem, p. 19.
25 In order to show this predominance of the Federation over the states, the Supreme Court of Justice issued a compulsory thesis through which it deactivated the possibility of using the diffuse control of the Constitution contained in our Constitution. Although article 133 establishes expressly that "The judges of each State shall adapt to such Constitution, laws and treaties in spite of the possible dispositions that may exist against it in the states’ constitutions or laws", the Court interpreted just the opposite: "Diffuse control of the constitutionality of general norms. Article 133 of the Constitution does not authorize it. The express text of article 133 of the Federal Constitution warns that "each state’s judges shall adapt to such Constitution, laws and treaties despite the possible dispositions that may exist against it in the states’ constitutions or law". In such literal sense the Supreme Court of Justice pronounced, however, the posture sustained afterwards by this High Tribunal, predominantly, has been in another sense, taking into account a systematic interpretation of the precept and the principles that conform our Constitution". In fact, this Supreme Court of Justice considers that article 133 of the Constitution is not source of constitutional control powers to the authorities that carry materially jurisdictional functions with respect to strange actions, such as the laws emanated from the Congress, nor of its own performance, that would allow it to ignore them. Such precept shall be interpreted through the lens of the regime established by the Constitution to this effect. Jurisprudence thesis, Semanario Judicial de la Federación, vol. X, August 1999, 9th period, Pleno.
26 See: Ferrajoli, Luigi, "Derechos fundamentales", in Ferrajoli, Luigi, Derechos y garantías: la ley del más débil, Madrid, Trotta, 1999, pp. 50 ff.
27 About this topic we shall follow the discussion that has been developing around the concept of legitimate interest. Since the presentation of an initiative of new law of amparo, the proposal of substituting the legal interest with legitimate interest has been set in the academic debate. See Zaldivar, Arturo, op. cit., note 17, pp. 55-64.
