6 de junio de 2023. Sesión 2 del Módulo I

New Section

This section introduces the second session of the "Diplomado sobre Juicio de Amparo Edición 2023" and provides an overview of the topic of human rights in Mexico and its introductory notes.

Introduction to the Diplomado (0:00:18 - 0:01:36)

• The session is part of the "Diplomado sobre Juicio de Amparo Edición 2023" organized by the Unidad General de Conocimientos Científicos y Derechos Humanos in coordination with the Dirección General de Casas de la Cultura Jurídica.

• Mario Ramírez Salazar, titular of Casa de la Cultura Jurídica in Hermosillo Sonora, will moderate the session.

• Participants are directed to a form for submitting questions during the session.

Introduction to Luis Mauricio Rangel Argüelles (0:01:36 - 0:03:26)

• Luis Mauricio Rangel Argüelles is introduced as the speaker for this session.

• He is currently serving as Secretary of Study and Accounts at the Supreme Court of Justice of Mexico.

• Rangel Argüelles has extensive experience in various legal roles, including authoring books on amparo proceedings and serving as a professor.

Opening Remarks by Luis Mauricio Rangel Argüelles (0:03:30 - 0:07:13)

• Rangel Argüelles expresses gratitude for being invited as a speaker.

• He aims to delve into an important aspect related to human rights and their guarantees, specifically focusing on constitutional control mechanisms.

• The diffusion of constitutional control worldwide is discussed, highlighting three main waves or movements that have shaped its development over time.

• The origins of constitutional control are often attributed to John Marshall's famous decision in Marbury v. Madison in 1803.

• The practice of judicial review in the United States and its historical background are mentioned.

New Section

This section continues the discussion on the diffusion of constitutional control mechanisms worldwide and their relevance in addressing violations of fundamental rights.

Diffusion of Constitutional Control Mechanisms (0:05:35 - 0:07:37)

• The diffusion of constitutional control is seen as a response to the need for institutional mechanisms to address conflicts related to federalism, separation of powers, and violations of fundamental rights.

• The author describes three waves or movements that have contributed to this diffusion:

• The first wave originated with the establishment of judicial review in the United States.

• The second wave occurred with the introduction of constitutional courts, such as the Austrian Constitutional Court in 1920.

• The third wave was linked to democratic transitions in various countries during the late 20th century.

New Section

This section provides an overview of the purpose and development of constitutional control mechanisms, focusing on Mexico's most significant mechanism, "el juicio de amparo."

Purpose and Development of Constitutional Control Mechanisms (0:04:15 - 0:05:12)

• Constitutional control mechanisms serve as a means to restore fundamental rights when violated by state organs.

• The speaker will explain how these mechanisms have evolved globally before delving into Mexico's main mechanism, "el juicio de amparo."

• Emphasis is placed on understanding the evolution and significance of "el juicio de amparo" through major constitutional reforms in 2011 and 2021.

Please note that these summaries are based solely on the provided transcript.

The Foundational Ideas of Constitutional Supremacy and Social Contract

This section discusses the foundational ideas that shaped the concept of constitutional supremacy and social contract in the early United States.

The Concept of Constitutional Supremacy

• John Locke's idea of a social contract influenced the notion of government as a common contractual agreement between citizens and their rulers.

• Citizens should be able to enforce this contract, especially when it is embodied in a written constitution.

• Written constitutions became an innovation in the founding of the United States.

The Role of Judges in Upholding Constitutional Supremacy

• While accepting that the Constitution is supreme, it does not provide a precise mechanism for ensuring its practice.

• American judges relied on a different institutional legacy than the legal tradition of English common law.

• They embraced natural law principles and nuances from Anglo-Saxon common law resolutions to become guardians of higher legality.

Judicial Autonomy and Natural Law Tradition

This section explores how judicial autonomy and the natural law tradition played a role in establishing higher legality in the newly created United States.

Judicial Autonomy from English Legal Tradition

• American judges had a long-standing tradition of institutional autonomy inherited from England.

• They were less bound by parliamentary supremacy compared to British legal traditions.

• Young American lawyers embraced natural law ideas that embodied this tradition, providing judges with resources to become guardians of higher legality.

Origins of Judicial Review

• The emergence of judicial review was unique to Anglo-American natural law traditions during this period.

• Other legal traditions like Islamic, Chinese, or Roman did not have similar mechanisms for constitutional control due to different ideological foundations.

Ideological Foundations for Constitutional Control

This section examines different ideological foundations that contributed to the establishment of constitutional control in various legal traditions.

Islamic Legal Tradition

• Islamic legal tradition emphasized restrictions rooted in religious and natural law over rulers.

• However, it lacked a general theory of legislation, avoiding conflicts between lower laws and divine or natural law.

Chinese Legal Tradition

• The Chinese legal tradition had a theory of legislation but lacked institutional constraints on the emperor, who held central authority based on a cosmological system.

The Emergence of Judicial Review in the United States

This section discusses the emergence of judicial review in the United States and its connection to strategic decision-making.

Origins of Judicial Review

• The concept of judicial review originated from Anglo-American natural law traditions during the late 18th century.

• It was influenced by political explanations such as game theory, particularly evident in cases like Madison v. Marbury.

Strategic Decision-Making

• Chief Justice Marshall's decision not to order President Jefferson to deliver a commission established judicial review strategically.

• It created a new constitutional equilibrium and demonstrated the limits on power rather than merely protecting fundamental rights.

Federalism and Constitutional Control

This section explores the relationship between federalism and constitutional control, highlighting how disputes over jurisdiction necessitate mechanisms for resolution.

Federalism and Disputes over Jurisdiction

• Federal systems with multiple levels or organs of government often face conflicts regarding legislative jurisdiction.

• The creation of a neutral third branch, the judiciary, helps resolve these disputes effectively.

Affinity between Federalism and Constitutional Control

• Many federal systems incorporate some form of constitutional control due to their complex political structures.

• The need to address inevitable disputes is illustrated by numerous federal systems implementing mechanisms for constitutional control.

The Dilemma of Collective Action in Free Trade Systems

In a system of free trade with multiple legislative bodies, states face a collective action dilemma related to their respective powers to legislate. This creates a threat that each state may establish protectionist barriers to trade, subsidies, etc., leading to the erosion of absolute free trade. To address this issue, states need to commit to a system of free trade through a written constitution that establishes a neutral body with powers to evaluate state legislation.

The Role of Neutral Bodies in Free Trade Systems

• In order for states to commit to a system of free trade, there needs to be an impartial body with the power to evaluate state legislation.

• This neutral body can help make the states' commitments to free trade more credible.

• The early history of the Supreme Court of the United States illustrates this logic as it focused on consolidating national power within the dynamics of commerce.

Control Constitutional and Federalism in Different Countries

The concepts of control constitutional and federalism can explain dynamics beyond the case of the United States. Other countries have also experienced similar interactions between control constitutional, federalism, and free trade.

Examples from Different Countries

• Norway had the power but avoided using control constitutional measures.

• Portugal introduced control constitutional measures in 1909.

• Early cases related to Amparo (individual cases) in Mexico were linked to relations between the federal government and states.

• The dynamics between control constitutional, federalism, and free trade can provide insights into other cases beyond the United States, such as those in the European Union.

Explaining Limited Control Constitutional Before 20th Century

The limited presence of control constitutional measures before the 20th century can be explained by the relatively few federal systems in existence during that time.

Limited Presence of Control Constitutional

• The limited presence of control constitutional measures before the 20th century can be attributed to the scarcity of federal systems.

• This explanation aligns with the first wave of control constitutional development, which originated from the United States.

Development of Control Constitutional Model

The development of control constitutional models began with Hans Kelsen's model, which was initially established in the Austrian Constitution of 1920. This model relied on judges as subordinates to parliamentary bodies and required a specially designated body for constitutional interpretation.

Hans Kelsen's Model

• Hans Kelsen's control constitutional model originated from the Austrian Constitution of 1920.

• Judges were considered interpreters of laws and subordinate to parliamentary bodies.

• However, this model required a separate body outside ordinary judicial power for constitutional interpretation.

• Unlike in the United States, where judicial power was vested in local judges, Europe created specialized constitutional courts to safeguard their constitutions.

Post-WWII Constitutional Courts in Europe

After World War II, several European countries adopted specialized constitutional courts as a means to protect their constitutions and uphold human rights. These courts were closely associated with extensive provisions on human rights within newly created constitutions.

Post-WWII Constitutional Courts

• Five European countries followed Kelsen's model and established specialized constitutional courts: Austria, Germany, Spain, Italy, and Portugal.

• These countries are considered post-fascist nations that developed control constitutional models as a response to post-war concerns about respecting human rights.

• The creation of specialized courts coincided with the inclusion of extensive provisions on human rights within new constitutions.

Control Constitutional and Protection of Human Rights

The creation of specialized constitutional courts in new democracies, particularly post-fascist and post-communist contexts, was closely associated with the protection of human rights. These courts played a crucial role in upholding constitutional order and ensuring the limitations on parliamentary power.

Protection of Human Rights through Specialized Courts

• In new democracies, where judicial power had limited status or capacity, the establishment of specialized constitutional courts made sense.

• These courts were created as a response to post-fascist and post-communist contexts, emphasizing respect for human rights.

• The control constitutional measures were closely linked to protecting human rights outlined in extensive provisions within newly created constitutions.

The transcript provided is in Spanish.

The Spread of Constitutional Control

This section discusses the spread of constitutional control or judicial review outside of Europe. It mentions how decolonization and constitutional reconstruction led to the adoption of constitutional control in countries like America and India.

The Adoption of Constitutional Control in New Democracies

• Many countries outside of Europe adopted constitutional control as part of their new democratic systems.

• India, for example, established a Supreme Court with limited but carefully circumscribed powers for constitutional review.

• Japan also included provisions for constitutional control based on the American model.

• These new democracies had relatively underdeveloped traditions of recognizing rights, but they saw the importance of protecting human rights.

Transformation and Expansion of Judicial Power

• Over time, many courts, such as the Supreme Court in India, expanded their original constitutional schemes to significantly increase their power.

• The Italian Supreme Court played a crucial role in invalidating fascist legislation gradually, maintaining a legitimizing fiction that Italians had won the war.

• Germany's unique combination of federalism and post-fascist desire for human rights protection made it fertile ground for constitutional control.

• France developed a different model of constitutional control through the establishment of the Constitutional Council, which acted as a separate sphere from the executive branch.

Limitations and Variations in New Democracies

• The level of activity and influence varied among these new institutions during this second wave of democratization.

• Some courts faced limitations when openly challenging elites after authoritarian regimes fell. However, they took short-term risks to gain long-term legitimacy.

• In countries like Pakistan, Indonesia, and Egypt, judges aimed to maintain institutional capital after democracy was restored by providing support to opposition actors.

Significance and Success Factors

• These dynamics are important for understanding the success and evaluation of constitutional control during the post-war human rights movement.

• Judicial legitimacy and the ability to restrict arbitrary government actions played a crucial role in using constitutional control as a defense against authoritarianism.

• The performance of constitutional control varied, but it served as an important safeguard against government abuse.

Federalism and Supranational Control

This section explores the relationship between federalism and supranational control. It discusses how both horizontal and vertical divisions of power contributed to the establishment and expansion of supranational control, including within the European Union.

Federalism and Horizontal Division of Power

• In some cases, the establishment of supranational control was influenced by both horizontal (executive vs. legislative) and vertical (distribution of powers among federated entities) divisions of power.

• France's supranational control model focused on the horizontal division between executive and legislative branches.

• The European Union also saw the development of supranational control through its federal structure.

Supranational Control in the European Union

• Even in systems without explicit authorization for constitutional control, some courts have claimed diffuse control by reviewing laws themselves.

• Israel serves as an example where its court's claims were eventually recognized through the approval of fundamental laws explicitly authorizing constitutional control.

• The spread of supranational control was particularly significant within the European Union.

Success Factors and Limitations

• The second wave of democratization primarily involved democratic and industrialized countries with unstable or authoritarian political contexts.

• Courts faced limitations when openly challenging elites after authoritarian regimes fell but aimed to maintain institutional capital after democracy was restored.

• These dynamics are essential for evaluating the success of constitutional control during this period.

Judicial Independence and Institutional Resources

This section highlights how judicial independence and access to institutional resources played a crucial role in maintaining constitutional control after authoritarian regimes fell.

Maintaining Institutional Capital

• After the fall of authoritarian regimes, judges aimed to maintain institutional capital by providing support to opposition actors.

• In countries like Pakistan, Indonesia, and Egypt, judicial decisions signaled the approaching end of authoritarian regimes and provided institutional resources to opponents.

Judicial Independence as a Political Issue

• The independence of the judiciary became a political issue around which various actors organized themselves.

• Judicial legitimacy and independence were used to restrict arbitrary government actions and defend against authoritarianism.

Evaluating the Success of Constitutional Control

• The spread of constitutional control during the post-war human rights movement relied on judicial legitimacy and restrictions on state power.

• The performance of constitutional control varied across different contexts but served as an important safeguard against government abuse.

The Third Wave of Democratization

This section discusses the third wave of democratization, which was influenced by the fall of the Berlin Wall and coincided with a new wave of judicial review. It led to the creation of constitutional courts in many countries.

Creation of Constitutional Courts

• Many post-Soviet constitutions included provisions for the creation of constitutional courts, except for Estonia which adopted the American model.

• New constitutional courts were established or existing ones were strengthened in regions like Africa, Asia, and even Mexico.

• The strengthening of these courts aimed to establish a true constitutional control system.

Spread of Constitutional Control

• Most constitutions now include some form of constitutional control, either through specialized tribunals or ordinary courts.

• The history of rights played an important role in spreading this institution in post-Soviet countries.

• Judges became associated with limiting government power and protecting rights.

• In South Africa, the Constitutional Court gained legitimacy after apartheid and was given authority to approve the final draft constitution.

Semi-Constitutional Control at International Level

• A new development is semi-constitutional control at the international level.

• Tribunals analyze legislative or administrative measures' conformity with international agreements.

• Unlike traditional mechanisms where states review each other's actions, these tribunals face pressure from interest groups seeking influence.

Evolution of Constitutional Control

• Constitutional control has evolved from enforcing structural provisions to focusing on rights and democracy.

• This evolution can be seen as three waves: federalism-focused control, rights-focused control, and now a potential fourth wave that includes semi-constitutional control.

Development of Constitutional Control in Mexico

This section focuses on the development of constitutional control in Mexico through the "juicio de amparo" (amparo trial), which combines external and internal influences.

Influences on Amparo Trial

• The amparo trial in Mexico is the result of a combination of external and internal factors.

• It was influenced by the public law tradition in the United States and Latin American countries during their early years of independence.

• The creators of the Mexican Amparo sought to introduce principles from judicial review, as discussed in Alexis de Tocqueville's "Democracy in America."

Control Difuso and Recent Developments

• Initially, control difuso (diffuse control) was not applicable for many years until it was implemented at a constitutional level in 2011.

• Control difuso refers to judges' power to invalidate laws they consider unconstitutional.

• This recent development allowed local judges to apply control difuso and invalidate laws they deemed unconstitutional.

The transcript continues beyond this point, but these are the key points covered up until .

Influence of Foreign Legal Systems

This section discusses the influence of foreign legal systems on the development of the amparo (protection) in Mexico.

Incorporation of Anglo-American Institution

• The habeas corpus, an Anglo-American institution, was incorporated into Mexican law as part of the amparo system.

• The concept and structure of habeas corpus were adopted from the United States.

• Certain provisions in the Mexican Amparo Law reflect this incorporation.

Spanish Influence

• The name "Amparo" itself is derived from Spanish legal antecedents.

• Centralization of judicial power, although considered a federal system, has its roots in Spanish influence during colonial times.

French Influence

• Declarations of human rights from France influenced the concept of individual guarantees in Mexico's Constitution.

• Attempts were made to implement a copy of the French Senate Conservator, but it had limited duration.

• French cassation (appeal) also influenced the design of direct amparo against judicial sentences.

Adoption of Federal System

This section explores how Mexico adopted a federal system and its impact on the amparo.

Influence from United States

• Mexico adopted a federal system similar to that of the United States.

• The structure and naming conventions for federal courts in Mexico resemble those in the United States.

Centralization vs. Federalism

• Despite being a federal system, there has been a tendency towards centralization in Mexican judicial matters since colonial times.

• All judicial matters were concentrated in federal courts through amparo proceedings, contradicting the principles of federalism.

Development within Mexico

This section highlights key developments within Mexico regarding the amparo.

Political and Jurist Convictions

• Mexican politicians and jurists recognized the need for an effective procedural instrument to protect fundamental rights against government actions.

• The development of the amparo was driven by their convictions.

Constitutional Framework

• The liberal Constitution of 1824 introduced two institutions for protecting constitutional norms: Congress's power to repress violations and the Supreme Court's competence to decide on infringements.

• However, the Supreme Court never exercised its authority due to the absence of a regulatory law.

Evolution of Amparo

This section discusses the evolution of amparo in Mexico, starting from the liberal Constitution.

Congressional Power

• The Federal Congress had the power to annul laws issued by state legislative bodies if they were deemed contrary to the federal constitution.

• Several laws were nullified based on this power, establishing an initial approach to amparo in Mexico.

Limited Role of Supreme Court

• The Supreme Court was granted authority to decide on constitutional and federal law violations but lacked a regulatory law.

• Only Congress's power was effectively exercised, while the Supreme Court's role remained limited.

Summary

This section provides a summary of key points discussed in the transcript regarding foreign influences and domestic developments related to amparo in Mexico.

Foreign Influences

• Anglo-American institution: Incorporation of habeas corpus into Mexican law as part of amparo system.

• Spanish influence: Name "Amparo" derived from Spanish legal antecedents; centralization of judicial power.

• French influence: Declarations of human rights; attempted implementation of French Senate Conservator; influence on direct amparo through cassation appeal.

Adoption of Federal System

• Influence from United States in adopting a federal system similar to that country.

• Tendency towards centralization in Mexican judicial matters despite the federal system.

Development within Mexico

• Recognition of the need for an effective procedural instrument to protect fundamental rights.

• Constitutional framework introduced institutions for protecting constitutional norms, but their effectiveness was limited.

Evolution of Amparo

• Congressional power to annul laws contrary to the federal constitution.

• Limited role of the Supreme Court due to absence of a regulatory law.

The summary provided is based solely on the content of the transcript and does not include any additional information.

Political Constitution and Supreme Conservative Power

This section discusses the political constitution and the establishment of the Supreme Conservative Power. It also mentions the limited existence of this power due to excessive and naive authorities attributed to it.

Establishment of the Supreme Conservative Power

• The political constitution included a supreme conservative power outside the traditional scope of executive, legislative, and judicial branches.

• Inspired by the system implemented by the conservative senate in France.

• However, this supreme conservative power had a short-lived existence due to its excessive and unrealistic authorities.

Reforming Constitutional Laws

• Several projects were proposed in 1840 and 1842 to reform or replace the constitutional laws of 1836.

• One proposal suggested abolishing the supreme conservative power, which was definitively abolished in 1841.

• The proposal aimed to replace it with a procedural instrument called "reclamo," which would protect constitutional norms and individual rights before federal courts, particularly the Supreme Court of Justice.

Mariano Otero's Contribution

• Mariano Otero participated in a project for a new constitution in 1840.

• Although this project did not receive legislative approval, it laid the groundwork for future implementation.

• It paved the way for Amparo (legal protection) at a national level.

Genesis of Amparo: Birth and Evolution

This section explores the genesis of Amparo as a legal concept. It highlights its emergence in Yucatán's constitution in 1841 and its subsequent inclusion in Mexico's national act of reforms in 1847.

Emergence in Yucatán's Constitution

• In Yucatán's constitution of 1841, Amparo emerged as a legal concept with its name.

• The project for this constitution was drafted by Manuel Crescencio Rejón, considered the creator of Amparo and the first in Latin America to establish judicial review of constitutionality.

National Implementation in Act of Reforms

• Amparo was officially established at a national level in Mexico's act of reforms in 1847.

• This act drew inspiration from Mariano Otero's project and incorporated it with modifications.

• The act introduced the "Otero formula," which emphasized that Amparo judgments should not contain general declarations but focus on protecting individual rights.

Scope and Limitations of Amparo

This section discusses the scope and limitations of Amparo as defined by the constitutional provisions. It clarifies that Amparo initially did not apply to judicial decisions but focused on attacks by legislative and executive powers.

Origin and Scope

• The origin of Amparo did not conceive its application against judicial decisions.

• According to Article 25 of the act of reforms, Amparo only applied to attacks by legislative or executive powers, excluding the judiciary.

Protection Against Attacks

• Tribunals were mandated to grant protection (Amparo) to any inhabitant exercising their rights granted by the Constitution and constitutional laws.

• However, this protection was limited to cases involving attacks by legislative or executive powers.

• The tribunals' role was to provide specific protection without making general declarations regarding the law or act being challenged.

First Implementation and Evolution

This section highlights the first implementation of Amparo in 1849 when a judge had to rule on an Amparo petition despite lacking a regulatory law for it. It also mentions key figures who established fundamental guidelines for Amparo during Mexico's Constituent Congress in 1856-1857.

First Implementation

• In 1849, Pedro Sámano, a district judge in San Luis Potosí, had to decide on an Amparo petition challenging an exile order.

• This implementation occurred before the first regulatory law for Amparo was enacted in 1861.

Guidelines by Constituent Congress

• The members of Mexico's Constituent Congress in 1856-1857, including Ponciano Arriaga, Melchor Ocampo, and León Guzmán, established fundamental guidelines for Amparo.

• Articles 101 and 102 of the Constitution of February 5, 1857, contained these guidelines.

• Some of these guidelines have endured to the present day.

The transcript provided a comprehensive overview of the topic. However, due to the limited timestamps available, some details may be missing from this summary.

Evolution of Amparo Process

This section discusses the evolution of the Amparo process in Mexico, highlighting its gradual expansion and development through various stages.

Development of Amparo Process

• The Amparo process evolved gradually through different regulatory frameworks.

• The first laws of Amparo were issued in 1861, 1869, and 1882, incorporating provisions for Amparo in the Codes of Civil Procedures.

• These regulations incorporated teachings from the Supreme Court, transforming Amparo from an imprecise instrument to a genuine process against infringing authorities.

• Initially used to protect life and liberty, Amparo gained popularity by even saving individuals from execution or forced military service.

• The introduction of collegiate courts was a significant transformation that allowed for direct Amparo against judicial sentences.

• Incorrect application of secondary laws led to accepting debatable interpretations of Article 14 of the Federal Constitution in favor of using Amparo against judicial sentences.

Expansion and Incorporation into Legal Framework

This section explores how the concept of Amparo expanded and became incorporated into the legal framework in Mexico.

Incorporation into Legal Framework

• The current Constitution adopted in 1917 included essential guidelines for Amparo.

• Initially contemplated under Article 14, it later extended to Articles 103 and 107.

• The protective scope of Amparo has expanded significantly, covering almost all aspects of national legal order, from constitutional principles to municipal regulations.

• This complexity explains the institution's evolution until today.

Importance and Prestige

This section highlights the importance and prestige associated with the use of Amparo throughout history.

Importance and Prestige

• Due to its historical significance, Amparo was employed to protect life and liberty, even saving individuals from execution or unlawful detentions.

• Amparo gained popularity and prestige among the general public for its role in safeguarding individual rights.

• The use of Amparo to defend against judicial sentences further enhanced its reputation.

Introduction of Amparo Directo

This section discusses the introduction of Amparo Directo, a form of Amparo used specifically against judicial sentences.

Introduction of Amparo Directo

• The centralization of judicial power in Mexico during the colonial era led to a concentration of lawyers in Mexico City and Guadalajara, where the only two appellate courts were located.

• After independence, additional magistrates were appointed to local courts, but lack of trust in these courts prompted lawyers to seek alternative means, such as using Amparo to transfer cases from local to federal courts.

• This practice allowed lawyers to bypass local tribunals even when dealing with state laws.

• The Supreme Court's attempt to concentrate all judicial matters resulted in declaring unconstitutional a law that prohibited using Amparo against judicial sentences.

• However, the current Constitution adopted in 1917 incorporated essential guidelines for both regular and direct Amparo.

Lack of Trust in Local Courts

This section explores the lack of trust in local courts and how it influenced the use of Amparo.

Lack of Trust in Local Courts

• The concentration of legal professionals in Mexico City and Guadalajara during colonial times created a lack of confidence in local tribunals.

• These local courts were subject to political influence from governors at that time.

• To avoid these influences, lawyers resorted to using Amparo even for cases involving state laws.

Overwhelming Caseload

This section discusses the overwhelming caseload faced by the Supreme Court due to the concentration of judicial matters.

Overwhelming Caseload

• The concentration of all judicial matters in the Supreme Court led to an overwhelming caseload.

• To address this issue, the Supreme Court declared unconstitutional a law that explicitly prohibited using Amparo against judicial sentences.

Expansion of Amparo's Protective Scope

This section highlights how Amparo's protective scope has expanded over time.

Expansion of Protective Scope

• The current Constitution adopted in 1917 incorporated essential guidelines for both regular and direct Amparo.

• The protective scope of Amparo has expanded significantly, covering almost all aspects of national legal order, from constitutional principles to municipal regulations.

Challenges with Application of Constitutional Articles

This section discusses challenges related to applying constitutional articles through regulatory laws.

Challenges with Application

• The application of constitutional articles, particularly Article 103 and Article 107, through regulatory laws posed challenges.

• Laws enacted after the current Constitution in 1917, such as those in 1919 and 1936, aimed to address the accumulation of Amparo cases in federal courts and the Supreme Court.

The Second Reform of 1968

This section discusses the second reform of 1968, which increased the number of collegiate circuit courts and redistributed Amparo trials among these courts and the Supreme Court. The distribution was based on social, economic, public interest, and social criteria.

Second Reform of 1968

• The second reform in 1968 increased the number of collegiate circuit courts.

• It redistributed Amparo trials between these courts and the Supreme Court.

• Criteria such as social, economic, public interest, and social factors were considered for distribution.

Transformation of the Supreme Court

This section explains how the Supreme Court transformed from primarily functioning as a court of cassation to becoming a specialized jurisdictional body for resolving constitutional conflicts.

Transformation of the Supreme Court

• Prior to reforms in 1988, the Supreme Court predominantly functioned as a court of cassation.

• With constitutional reforms in 1988, it became specialized in strictly constitutional matters.

• Second instance Amparo trials were sent to collegiate circuit courts.

• Direct Amparo trials against judicial sentences were also referred to collegiate circuit courts.

• The Supreme Court gradually transformed into a specialized jurisdictional body for resolving constitutional conflicts.

Competence and Functioning Changes

This section discusses changes in the competence and functioning of Mexico's judiciary with significant legal and constitutional reforms in 1995.

Competence and Functioning Changes

• Legal and constitutional reforms in 1995 brought substantial changes to the composition and functioning of Mexico's judiciary.

• The number of Supreme Court justices was reduced from twenty-six to eleven to align it with a specialized constitutional tribunal.

• Article 105 of the Constitution was amended, introducing two sections: one for constitutional disputes and the other for actions of unconstitutionality.

• The scope of controversies expanded to include municipalities and Mexico City.

• Conflicts between legislative and executive bodies at different levels (federal and state) were also included.

Controversies and Actions of Unconstitutionality

This section explains the expansion of controversies to encompass municipalities, Mexico City, conflicts of attribution between legislative and executive bodies, and the introduction of actions of unconstitutionality.

Controversies and Actions of Unconstitutionality

• Prior to 1995 reforms, controversies resolved non-friendly jurisdictional limits between states.

• Reforms extended the scope of controversies to include municipalities, Mexico City, conflicts between legislative and executive bodies.

• A new instrument called "action of unconstitutionality" was introduced as an abstract action that did not require special legal interest.

• Minority parliamentary groups (33% representation) were primarily legitimized to initiate actions of unconstitutionality against laws they enacted.

• Eight out of eleven Supreme Court justices' votes were sufficient to declare general effects in cases of unconstitutionality.

Abstract Action with General Effects

This section discusses the concept of abstract action in constitutional matters with general effects. It also includes additional subjects authorized to initiate such actions.

Abstract Action with General Effects

• An abstract action is characterized by not requiring a specific legal interest to be invoked.

• The purpose is to allow minority parliamentary groups (33% representation) to challenge laws they enacted.

• Eight out of eleven Supreme Court justices' votes are sufficient for declaring general effects in cases of unconstitutionality.

• Additional authorized entities include the Attorney General's Office, political parties against electoral laws, autonomous constitutional bodies like the National Human Rights Commission, and transparency bodies at federal and state levels.

Expansion of Actions and Functionality

This section explains the expansion of actions of unconstitutionality to include autonomous constitutional bodies and other entities like the National Human Rights Commission and transparency bodies.

Expansion of Actions and Functionality

• 1995 reforms expanded the functionality of actions of unconstitutionality.

• Autonomous constitutional bodies like the National Human Rights Commission were included as authorized entities.

• Transparency bodies at federal and state levels were also authorized to initiate such actions.

Reforms in 2011 - Amparo and Human Rights

This section highlights significant reforms in 2011 related to Amparo (constitutional protection) and human rights. The focus is on Amparo-related reforms.

Reforms in 2011 - Amparo

• In June 2011, substantial reforms took place regarding human rights and Amparo.

• These reforms aimed to strengthen Amparo as an instrument for safeguarding human rights.

• The timing of these reforms coincided with those related to human rights.

• The specific details regarding the content of these reforms are not provided in this transcript.

Complex Circumstances Before Constitutional Reform

This section acknowledges that it is challenging to pinpoint the exact circumstances before the constitutional reform related to Amparo. Various national and international factors influenced these reforms, including political consensus within the Congress.

Complex Circumstances Before Constitutional Reform

• Identifying precise circumstances before the constitutional reform related to Amparo is complex.

• Both national and international factors played a role in shaping these reforms.

• Political consensus within the Congress was necessary for enacting these reforms.

Influence of the Constitutional Reform

This section discusses the international and national influences on the constitutional reform, particularly in relation to the development of constitutionalism and human rights protection.

International Influence

• The reform had a significant impact on the theoretical and philosophical conception of constitutionalism in Europe.

• It emphasized the role of institutional justice in addressing complex problems related to fundamental rights.

• The reform aimed to establish a true constitutional democracy by limiting majority decisions and prioritizing individual rights.

National Context

• The process of amparo (legal protection) reform began in 1999 with the involvement of legal experts and civil society.

• Proposals were collected, leading to a draft law that was discussed at a national congress of jurists in 2000.

• The Supreme Court reviewed and submitted the draft as an initiative for a new amparo law in 2001.

• In 2003, a national consultation was held to further reform the justice system, resulting in the creation of a "white book" on judicial reform.

Objectives of Judicial Reform

• Consolidate amparo as a fundamental instrument for defending the constitution and protecting human rights.

• Emphasize its use as a tool for safeguarding both constitutional rights and international human rights treaties.

• Expand access to justice by adopting legitimate interest as grounds for filing amparo petitions.

Key Elements of Amparo Reform

This section highlights specific measures taken during the amparo reform process, including legislative changes, jurisprudential improvements, and judicial governance measures.

Measures Taken

• Reforming amparo through legislative proposals based on a new draft law.

• Developing a constitutional procedural code for amparo cases.

• Improving jurisprudential systematization and simplifying its content for better understanding.

• Implementing judicial governance measures through general agreements.

Broadening the Scope of Amparo

This section focuses on the expansion of amparo's protective scope, particularly in relation to human rights and the effective protection of economic, social, and cultural rights.

Expanded Tutelary Scope

• Amparo now explicitly covers human rights guaranteed by international treaties.

• It allows amparo petitions against omissions by authorities to ensure effective protection of economic, social, and cultural rights.

• The inclusion of legitimate interest as a ground for filing amparo petitions is a significant development.

Enhancing Access to Justice

This section discusses measures aimed at improving access to justice and ensuring prompt resolution of cases through the introduction of new procedural elements.

Measures Implemented

• Introduction of adhesivo (adhesive) amparo petitions to enhance compliance with the duty to administer justice promptly.

• Establishment of a summary procedure for indirect amparo cases related to administrative acts lacking proper justification.

• Incorporation of general declarations of unconstitutionality leading to jurisprudence based on precedent rather than general norms.

These are the key points from the transcript.

Introduction to the Legal Framework

The speaker discusses the incorporation of legal and jurisprudential notions in determining whether to grant a precautionary measure or suspension. They also mention the introduction of Amparo against certain acts of individuals that affect fundamental rights.

Incorporation of Legal Notions

• The speaker explains that legal and jurisprudential notions are incorporated to determine if granting a precautionary measure or suspension is appropriate.

• This involves an exercise of weighing different factors.

Amparo Against Acts of Individuals

• The speaker mentions the introduction of Amparo against certain acts of individuals.

• Under the current Amparo law, individuals can be considered as responsible authorities if they perform acts equivalent to those performed by authorities that affect fundamental rights.

• There has been a development in jurisprudence regarding which acts by private entities can be challenged through Amparo.

Protection of Human Rights

• The expansion of Amparo against acts of individuals is an important addition alongside the legitimate interest requirement.

• It aims to ensure effective protection of human rights, regardless of their individual or social nature.

• International human rights treaties are also considered for protection, in addition to those enshrined in the Constitution.

Value Dimension and Education

• The understanding that law has a value dimension has led to greater importance given to legal education and its methodological and philosophical aspects.

• Promoting, respecting, protecting, and guaranteeing human rights, especially those established in international treaties, became an obligation parallel to these reforms.

Reform on Control Constitutional System

The speaker discusses the reform on control constitutional system and highlights the reconfiguration of the Federal Judicial Power with a focus on positioning the Supreme Court as a true constitutional court. They also mention changes related to precedents and appellate courts.

Repositioning the Supreme Court

• The reform aimed to reposition the Supreme Court as a true constitutional court.

• Concentration of cases and other issues led to the need for reconfiguration.

• The Supreme Court's competence was adjusted to focus on constitutional matters.

System of Precedents

• A system of precedents was created to provide coherence and uniformity in criteria issued by the Federal Judicial Power.

• Collegiate courts of appeals replaced circuit unitary courts to optimize their jurisdictional and organizational functions.

• Regional plenary courts were established, replacing circuit plenary courts.

Self-regulation of Judicial Organs

• The reform also included provisions for self-regulation of judicial organs within the Federal Judicial Power.

• This aimed to ensure proper functioning and accountability through internal regulations.

Recent Reform on Federal Judicial Power

The speaker briefly mentions the recent reform on the Federal Judicial Power that took place in March 2021. They highlight its implications on constitutional control and the goal of positioning the Supreme Court as a specialized constitutional tribunal.

Repositioning the Supreme Court

• The recent reform aimed to further reconfigure and position the Supreme Court as a specialized constitutional tribunal.

• It addressed concentration issues and sought to enhance its role in constitutional matters.

Systemic Changes

• The reform introduced changes in terms of control over constitutionality, including a system of precedents.

• It replaced unitary circuit courts with collegiate courts of appeals for better jurisdictional performance.

Organizational Regulation

• The reform also included provisions for self-regulation within the Federal Judicial Power, ensuring effective functioning through internal regulations.

General Agreements and Distribution

The speaker discusses the distribution of cases among different courts and the importance of general agreements in establishing jurisprudence.

Distribution of Cases

• There is a need for an adequate distribution of cases between different courts, including the Supreme Court and collegiate circuit courts.

• Some cases are referred to collegiate circuit courts if there is existing jurisprudence on the matter.

• Reiteration of jurisprudence is important for robust and influential criteria in judicial bodies.

Limitations on Jurisprudence Development

• Prior to the reform, reiteration of jurisprudence was limited by requiring five unanimous decisions by the Supreme Court in different sessions.

• This made it difficult to generate jurisprudence quickly or in similar cases.

Role of President in Generating Jurisprudence

• With the current system, where there is a single president, there is an idea that mandatory reiteration with qualified voting can generate jurisprudence.

• Similar cases can be resolved based on this generated jurisprudence by collegiate circuit courts.

Reform Changes and Career Judicial System

The speaker explains changes brought about by constitutional reforms, including the establishment of a career judicial system and gender parity principles.

Inamovability and Career Judicial System

• The 2021 constitutional reform introduced the concept of inamovability for judges' ratifications.

• The previous Organic Law was repealed, and a new General Law on Judicial Career was created for all personnel within the judiciary.

Contradiction of Criteria

• The concept of "contradiction of tesis" (contradiction of criteria) replaced "contradiction de tesis" (contradiction of thesis).

• This change aims to incorporate new processes for training, capacity building, and updating judicial personnel.

Gender Parity in Judicial Career

• The principle of gender parity is explicitly incorporated into the career judicial system.

• This aligns with the constitutional reform of June 6, 2019, which aimed to include gender parity in public office appointments.

Revision Resources and Concentration of Cases

The speaker discusses changes related to revision resources and the concentration of cases for a stronger Supreme Court as a constitutional tribunal.

Revision Resources in Amparo Cases

• The scope of revision resources in direct Amparo cases is limited to those of exceptional interest in constitutional or human rights matters.

• The objective is to strengthen the Supreme Court as a true constitutional tribunal.

Concentration on Constitutional Controversies

• Through mechanisms like "controversias constitucionales" (constitutional controversies), the focus shifts from analyzing legality to addressing direct violations of the Constitution and human rights.

• Declarations of general unconstitutionality are now generated through qualified voting from the first resolved case.

Evolution and Challenges

The speaker concludes by highlighting the evolution of the new amparo trial and ongoing challenges in daily case resolution.

Evolution of Amparo Trial

• The speaker provides an overview of how the new amparo trial has evolved over time.

• Emphasis is placed on meeting expectations and preserving constitutional order through this control mechanism.

Ongoing Challenges

• There are still challenges in daily case resolution that need to be addressed.

• These challenges aim to meet expectations set by litigants seeking justice through the amparo trial process.

Fundamental Human Rights and Individual Guarantees

The distinction between fundamental human rights and individual guarantees is discussed. These terms are often used interchangeably, but there is a slight terminological difference. Fundamental human rights refer to the rights enshrined in international treaties, while individual guarantees pertain specifically to the protection of individual rights.

Difference between Fundamental Human Rights and Individual Guarantees

• Fundamental human rights are crystallized in international texts or treaties.

• The term "individual guarantees" emerged because it initially focused on the protection of individual rights.

• Fundamental human rights encompass civil and political rights (first-generation rights), while subsequent economic, social, and cultural rights are considered collective rights.

• Both terms, fundamental human rights and individual guarantees, have similar connotations in contemporary usage.

Control of Conventionality vs Constitutional Control

This section explains the difference between control of conventionality and constitutional control. While they may seem similar, they have distinct purposes and scopes.

Difference between Control of Conventionality and Constitutional Control

• Control of conventionality refers to the examination conducted by competent federal courts to safeguard fundamental human rights as outlined in international conventions.

• Constitutional control focuses on protecting human rights guaranteed by the constitution itself.

• Constitutional control may also include elements of conventionality control when a constitution incorporates respect for international treaty obligations.

• It is important not to confuse control of conventionality with diffuse control, which involves judicial review by lower courts regarding both constitutional and conventionally protected human rights.

Sovereignty Implications of Constitutional Control

This section explores whether constitutional control can be seen as antagonistic to state sovereignty.

Sovereignty Implications of Constitutional Control

• Constitutional control, particularly through direct amparo proceedings, was initially proposed to be limited to exceptional cases.

• The idea behind this limitation was to avoid concentrating all matters from federal entities in federal courts.

• Granting the final say on state matters to a federal authority could have implications for the federal system.

• However, with trust placed in local and appellate courts, it was deemed unnecessary to restrict direct amparo proceedings.

• Constitutional control by a federal authority may have certain implications within a federal system.

Supreme Court as a Constitutional Tribunal

This section discusses whether the Supreme Court of Justice of the Nation fulfills the characteristics of a true constitutional tribunal or if a separate constitutional tribunal is necessary.

Supreme Court as a Constitutional Tribunal

• A true constitutional tribunal does not belong to the judicial branch, unlike the configuration of our Supreme Court, which is part of the judicial power.

• The original concept of a constitutional tribunal originated from the Austrian Constitution with the aim of ensuring impartiality and minimizing interference from traditional executive, legislative, and judicial powers.

• Through various reforms since 1951, including those in 1988, 1995, 2011, and 2021, efforts have been made to grant the Supreme Court qualities similar to those of a constitutional tribunal.

• Creating a separate constitutional tribunal outside the jurisdiction of the federal judiciary may not be necessary given recent reforms that enhance the role and interpretive power of the Supreme Court as Mexico's highest interpreter of the constitution.

The transcript continues beyond this point.

Influence of Amparo in Latin America

The creation of the Mexican Amparo had a significant influence on Latin America, particularly in the field of constitutional law. However, it is unclear if it had any direct impact on the drafting of human rights charters.

Implications of Amparo in Constitutional Law

• The creation of the Mexican Amparo had a strong influence on Latin America.

• It played a major role in shaping constitutional law.

• Its influence on the drafting of human rights charters is uncertain.

Role of Citizens in Constitutional Control

In Mexico, citizens have a role in constitutional control through mechanisms such as plebiscites and the right to initiate laws before Congress.

Plebiscite and Direct Democracy

• Plebiscites are more commonly used at the state level for consultation purposes by authorities regarding certain projects.

• The initiative by citizens to propose laws is more important and reflects a society that is conscious and actively participates in democratic processes.

• Initiatives generated by citizens have greater democratic quality compared to those solely initiated by the executive or legislative branches.

Challenges for Human Rights Protection in Mexico

Mexico faces several challenges regarding the protection and guarantees of human rights.

Compliance with Amparo Sentences

• One major challenge is ensuring compliance with Amparo sentences.

• While progress has been made, there is still much work to be done.

• Opening doors for various violations of fundamental rights through Amparo contracts and legitimate interests has been an important development.

• Strategic litigation by associations has advanced human rights protection.

Relevance of Otero Formula for Human Rights Progressivity

The Otero formula, which originated in the 19th century, does not have the same relevance today as it did back then.

Limited Scope of Otero Formula

• The Otero formula was designed to protect individual rights within a limited scope.

• As the concept of Amparo expanded, it became necessary to address broader issues and challenges.

• The introduction of the action of unconstitutionality allowed for challenging laws beyond specific cases.

• The evolution of constitutional control has been cautious and responsive to changing needs.

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Actions of Unconstitutionality and Minority Parliamentary Groups

This section discusses the actions of unconstitutionality and their relationship with minority parliamentary groups. It highlights the justification for these actions to have general effects and the requirement for a qualified vote in declaring the unconstitutionality of norms.

Actions of Unconstitutionality by Minority Parliamentary Groups

• The actions of unconstitutionality are promoted by minority parliamentary groups.

• These actions aim to have general effects, affecting not only the individual who filed the action but also other individuals who were similarly affected by the unconstitutional act.

• There is a requirement for a qualified vote in declaring the unconstitutionality of norms analyzed in these actions.

General Declarations of Unconstitutionality and Qualified Vote

This section explores general declarations of unconstitutionality and their connection to qualified voting. It mentions how this process has been evolving over time.

General Declarations of Unconstitutionality and Qualified Voting

• Declarations of general unconstitutionality require a qualified vote from legislators.

• The process has been evolving, and there is a tendency to blur the distinction between general declarations and individual cases.

• The concept of "amparo" (legal protection) comes into play when there is an infringement on legitimate interests related to human rights or collective rights.

• Amparo can extend its effects beyond an individual case, potentially benefiting other individuals who experienced similar collective harm caused by an authority's action.

Legitimate Interest, Collective Rights, and Amparo

This section delves into legitimate interest, collective rights, and their relation to amparo. It emphasizes that amparo can protect not only individual cases but also collective interests.

Legitimate Interest, Collective Rights, and Amparo

• Legitimate interest is closely related to the protection of collective human rights or entitlements that involve actions by authorities.

• Amparo extends its effects to other individuals who have experienced similar collective harm caused by an authority's action.

• The Supreme Court has expressed the need for a better understanding and protection of fundamental rights, especially those with a collective nature.

Creation of General Declarations of Unconstitutionality

This section discusses the creation of general declarations of unconstitutionality and how it affects the Otero formula.

Creation of General Declarations of Unconstitutionality

• The creation of general declarations of unconstitutionality stems from amparo cases.

• This process contributes to blurring the distinction between general declarations and individual cases.

• Despite this evolution, the Otero formula still holds relevance in justifying certain types of violations.

Difference Between Legitimate Interest, Juridical Interest, and Simple Interest

This section explains the difference between legitimate interest, juridical interest, and simple interest.

Difference Between Legitimate Interest, Juridical Interest, and Simple Interest

• Juridical interest is based on individualized subjective rights that give rise to the first type of amparo protection.

• Legitimate interest has a broader scope and can include indirect harm. It relates to objective rights recognized by individuals within society.

• Simple interest refers to a mere claim for justice without specific legal grounds.

Concession of Amparo Benefits

This section highlights how the concession of amparo benefits differs between legitimate interest and simple interest cases.

Concession of Amparo Benefits

• In cases involving legitimate interests, granting amparo can result in individual benefits.

• Simple interest cases do not entail the same level of benefit, as they are more focused on seeking justice without specific legal grounds.

Conclusion and Reflection on Amparo and Judicial Power

This section provides concluding remarks on the importance of understanding amparo and the role of judicial power in Mexico.

Conclusion and Reflection

• Understanding amparo and other control mechanisms is crucial for comprehending the Mexican legal system.

• The creation of doctrine and judgments contributes to a better understanding of the role of federal judicial power.

• Further study will delve deeper into these topics, providing a more comprehensive understanding of amparo.

Closing Remarks

This section concludes the discussion with final remarks expressing gratitude for the opportunity to share insights on amparo.

Closing Remarks

• The speaker expresses gratitude for the opportunity to discuss amparo and its related topics.

• The presentation serves as an introduction to further exploration and study of amparo's intricacies.

Control Constitucional y de Convencionalidad en el Sistema Jurídico Mexicano

This section discusses the promotion and guarantee of human rights, specifically focusing on control constitucional (constitutional control) and control de convencionalidad (conventionality control) in the Mexican legal system.

Control Constitucional y de Convencionalidad en el Sistema Jurídico Mexicano

• Control constitucional (constitutional control) refers to the process of ensuring that laws and government actions comply with the constitution.

• Control de convencionalidad (conventionality control) involves verifying that laws and government actions align with international treaties and conventions related to human rights.

• These controls are important for upholding human rights in Mexico's legal system.

• The discussion emphasizes the significance of promoting and guaranteeing human rights in the country.

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