Symposium on the Judicial Overhaul in Mexico Part 7: A Predicament of Its Own Making – On the Supreme Court of Mexico’s Conundrum on the Limits of Amendment Powers

—Jaime Olaiz-González, Universidad Panamericana (Mexico City)[1]

[Editors’ Note: This is Part 7 of a symposium on the recent constitutional amendments affecting the judiciary in Mexico. The introduction to the symposium can be found here.  The symposium pieces are cross-posted at ICONnect (in English) and at IberICONnect (in Spanish). We are grateful to Ana Micaela Alterio for her work in organizing the symposium.]

Mexico’s Supreme Court is about to discuss the constitutionality of the procedures (and substance) of a consequential amendment to the Mexican Constitution that entails a complete overhaul of the Judiciary.

It is perhaps the most challenging and complex case in all its history and will require the Court for the first time to address the (un)constitutionality of a constitutional amendment and as we will see, its precedents on the matter have created for the Court a predicament of its own making.

In contrast to other jurisdictions, Mexico’s Supreme Court has established an enduring doctrine preventing it from reviewing the constitutionality of constitutional amendments. The central argument is based upon the constituent power theory in which the Court as a constituted power is not empowered to review the amendments passed by Congress and the state legislatures since in doing so under the rules of the amendment mechanism established in Article 135 of the Constitution, they are performing acts tantamount of those made by the constituent power. In Mexican jurisprudence this has been known as the Permanent Constituent Power doctrine. Notwithstanding the evident contradiction in terms, it has endured for decades.

This doctrine has led the Court to systematically reject any attempt to review a constitutional amendment. Nonetheless, in recent years, the Court has modified its views in two significant ways:

On the one hand, it has issued some consequential decisions affirming its competence to scrutinize the constitutionality of the procedures that produce a constitutional amendment without entering the analysis of the substance of the amendment. Such a change of criterion enables the Court to exercise its fiduciary duties in overseeing compliance of the specific procedures to amend the Constitution. However, this criterion falls short for cases in which an amendment may alter substantial features of the constitution but was passed in compliance with the rigid procedural requirements to approve it.

On the other hand, there has been a gradual change of its enduring formalistic and dogmatic view, setting forth a growing and yet insufficient approach towards a more living and dynamic reading of the Constitution, its institutions and procedures. In recent discussions, a minority of the Court has posited a series of arguments defending its ability to review not only the procedures but also and more importantly, the consistency and coherence of the contents of the amendment with the constitution itself. This gradual shift on constitutional interpretation, combined with the unprecedented implications of the recent constitutional amendment on the judiciary, has triggered a long overdue debate on implicit constitutional unamendability in Mexico.

It may be obvious but the crux of the matter in this case is two-fold:

First, for the Court to differentiate between the constituent power – which is unitary, temporary, and non-transferable – and the different degrees and functions of the delegated constituted powers that result from a founding process of constitutional creation in which all constituted powers are designed to exercise a fiduciary duty of the constitution. This differentiation is critical to the task at hand since the dominant – not to say the official – narrative of the governing coalition to justify this replacement is that it is acting as a constituent power in amending the constitution due to the mandate of the people that resulted from their landslide victory in the last election. This is a deliberately misleading argument that is very much in line with the contemporary trend of putting the political majorities’ will even over the constitution. Therefore, it becomes critical for the Court to clarify that political supermajorities (i) are not the same as a constituent power or assembly; and (ii) are endowed with powers to amend the constitution within its own internal coherence and historical continuity but not to replace it by altering the fundamental features that constitute its basic structure.

Second, for the Court to frame this controversy as it is: not as an amendment but as a constitutional replacement, which requires the highest degree of constitutional scrutiny, since it is replacing the fundamental features or basic structure of the Constitution, such as the republican character of Mexico’s form of government based upon the principle of separation of powers and among them, an independent judiciary insulated from the political process.

There is no doubt that identifying the fundamental features that comprise the identity or the basic structure of the constitution is a challenging and complex task. For starters, there is not a standard methodology to conduct this process of discovery that is deeply context-influenced. In the case of Mexico, a plausible formula combines historical and jurisprudential methods to ascertain whether there is a series of implicit and explicit elements that vest critical relevance in our constitutional arrangements. It is worth noting that from the historical perspective, very few features have been a constant in each of Mexico’s constitutions since its independence -let’s call them the explicit recurrences, and they are -in this order: (i) the republican and democratic form of government, (ii) separation of powers and judicial independence, and (iii) federalism. These three features appear in at least four of the five constitutions on record –1824, 1836, 1847, 1857, and 1917 – and they represent a deeply ingrained societal commitment as part of Mexico’s basic constitutional arrangement.

These explicit recurrences constitute the foundations to build the rest of the constitutional edifice that in the case of the text of 1917 has been successfully recalibrated and refined through momentous constitutional amendments such as the reform incorporating effective judicial review and making the Supreme Court a full-fledged constitutional tribunal in 1994; the reform creating an independent authority at a constitutional level to organize, oversee, and qualify elections (the so-called Electoral Branch) in 1995; and the consequential amendment of 2011 incorporating the international system for the protection of human rights at a constitutional level, placing human rights and their protection at the center of the Constitution in light of the pro persona principle. Altogether, the historic explicit recurrences and the momentous reforms of 1994, 1995, and 2011 constituted an overarching societal consensus around the notion of making Mexico an actual liberal constitutional democracy.

The historic perspective is complemented by a growing and yet insufficient jurisprudential discussion within the ranks of the Supreme Court in which an equally growing number of members of the Court have vindicated the idea that there is a series of principles, values, and features that vest structural relevance and therefore, deserve the highest degree of protection.

This shift in the Court’s attitude towards establishing limits to the amendment powers was clearly shown in the recent debate on the constitutionality of the so-called automatic pre-trial detention (APD) in which a minority of the Court coincided in pointing out that the APD runs against “something” that constitutes the parameter of validity of human rights in the Constitution. The central question in this context was what is that “something” that the minority of the Court deemed essential for the case? From the vantage point of contemporary comparative constitutionalism, they were referring to the constitutional core or basic structure of the constitution.

Based upon the momentous amendment on human rights of 2011, the minority vote comprised by the opinion of four members of the Court ranged from arguments such as “[The] Constitution itself establishes a mechanism to comprehensively protects all human rights in Mexico, [because] it is the essence of democracy and of the constitution,” to describe what they deemed as the inalterable basic principles of Mexico’s Constitution: separation of powers, a republican, secular, and democratic form of government, and ultimately, “that the Constitution should be interpreted in its most comprehensive and protective sense, as provided in its Article 1,” and to consider that in defining the scope of inquiry on this matter, the Court was expected to ascertain the place of the APD “[in] our constitutional regime, structurally understood –as the sum of its most fundamental principles.” Either in explicit terms such as those just described, or in more implicit ways, the minority of the Court coincided in addressing or acknowledging a sort of basic structure or basic core of the Constitution and all of them also agreed in considering Article 1 as such. This discussion illustrates the gradual internalization of this issue within the Court to this day.

Now, even though it already may be too late, the Court will be confronted with its ultimate test: to ascertain whether as a constitutional tribunal it is effectively empowered to serve as the supreme guardian of the constitution by establishing limits to the amendment powers of a political supermajority that is driving the constitution itself to its utter demise.

Suggested citation: Jaime Olaiz-González, Symposium on the Judicial Overhaul in Mexico Part 7:A Predicament of Its Own Making – On the Supreme Court of Mexico’s Conundrum on the Limits of Amendment Powers, Int’l J. Const. L. Blog, Oct. 8, 2024, at: http://www.iconnectblog.com/symposium-on-the-judicial-overhaul-in-mexico-part-7-a-predicament-of-its-own-making-on-the-supreme-court-of-mexicos-conundrum-on-the-limits-of-amendment-powers/

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[1] I borrow the title of this entry from a 2009 op-ed in the Boston Review of Professor Owen Fiss in which he elaborates on Barack Obama’s decision to close Guantanamo. See Owen Fiss, “A Predicament of His Own Making,” Boston Review, 3 May 2011, https://www.bostonreview.net/articles/owen-fiss-guantanamo-bay-military-tribunals/.