Symposium on the Judicial Overhaul in Mexico Part 8: The Problem of the Amending or Revising Power and Its Constitutional Limits

—Imer B. Flores, Instituto de Investigaciones Jurídicas, UNAM

[E]very constitution as a whole is a limit,
constitutional government means limited government.
Hilario Medina

[Editors’ Note: This is Part 8 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.]

I

Recalling the words of constituent assembly member Don Hilario Medina, commemorating the first 15 years of the Mexican Political Constitution, promulgated on February 5, 1917, and in force since May 1 of that same year, is imperative. This allows me to reiterate that, for him—as for me—there are indeed “limits to reforms” of the Constitution itself, as he hinted in his “Speech Alluding to the Closing of the Constituent Congress (1916-1917)”.

Nevertheless, in Mexico, the scholarship appears to be divided regarding the constitutional review of amendments or reforms to the Constitution. We can trace the original problem to a double mutation of the constitutional text:

On the one hand, Article 133 originally enshrined diffuse control of constitutionality. However, from 1942 onwards, a contrary criterion prevailed. In resolving the amparo review 4,072-1941/2a, based on the opinion of then-Minister Gabino Fraga, the precedent held that only the federal judiciary could address the unconstitutionality of laws through amparo proceedings. This came to create an “undue monopoly” in favor of amparo and the federal judiciary, denounced by Antonio Martínez Báez—son of another illustrious constitutionalist—and defended by Antonio Carrillo Flores.

On the other hand, Article 135 established the possibility to amend or reform the Constitution and 136 stipulated its inviolability. However, in that same year of 1942, Felipe Tena Ramírez published, as an article, a preview of what would appear, a couple of years later, in his celebrated book Mexican Constitutional Law (1944). There, he would explore the “competence of the Constitution’s revising power”. In this regard, he would affirm “the separation in time and theory of the constituent power from the constituted powers no longer stands out with the same clarity”. On one side, he noted: “Indeed, Article 135 establishes an organ, composed of the association of the Congress of the Union and the state legislatures, capable of altering the Constitution through additions and amendments to it.” On the other, he pointed out: “This organ must participate in some form of the sovereign function, from the moment it can touch the work that is an expression of sovereignty. Its function is thus a constituent function. And since, on the other hand, it is an organ that survives the author of the Constitution, whose life was extinguished with its task, we consider that it deserves for all this the name of ‘permanent constituent power’.” Thus, he would insist:

It is said that the reforming power, created by the constituent, cannot equal or surpass the sovereignty enjoyed by the constituent in giving the Constitution, because the power to reform is an attributed faculty, an authentic competence and, as such, limited; in this way, the fundamental political decisions of the Constitution are matters proper to the constituent power of the people and do not belong to the instances authorized to reform and revise the Constitution. The error consists … in considering the revisory organ as constituted, when its functions are indeed those of a constituent.

II

Therefore, it appears for some that the amending or reforming power is not a constituted power but a constituent one and, as such, no type of control is appropriate. This reasoning would not be questioned until Ignacio Burgoa Orihuela unsuccessfully promoted an amparo against decree #97 of constitutional reform, published in the Official Journal of the Federation (DOF), on November 17, 1982. This decree would serve to substantiate the bank’s expropriation.

The precedents of the Supreme Court of Justice of the Nation on the matter, subsequent to decree #133 of constitutional reform, in judicial matters, published in the DOF, on December 31, 1994, are:

1) The “Camacho’s amparo”, promoted by Manuel Camacho Solís, against decree #136 of constitutional reform, in political-electoral matters, published in the DOF, on August 22, 1996, established a most important criterion: “Constitutional reform, Amparo against its creation process. It proceeds for violation of political rights associated with guarantees”.

2) The constitutional controversies “in indigenous matters”, promoted against decree #151 of constitutional reform, published in the DOF, on August 14, 2001, gave rise to the opposite criterion “Procedure of reforms and additions to the Federal Constitution. It is not susceptible to jurisdictional control”.

3) The constitutional review 168/2007, promoted against decree #178 of constitutional reform, published in the DOF, on November 13, 2007, came to reiterate the sense of the previous criterion with several theses.

4) The “intellectuals’ amparo”, promoted against the previous decree, constituted a radical 180-degree change, returning to the criterion of the “Camacho’s amparo” and as such the admissibility: “Procedure of reforms to the Mexican Political Constitution. The inadmissibility of the amparo trial promoted against it is not manifest or indubitable”. Due to its transcendence, we allow ourselves to transcribe the thesis:

When the Congress of the Union and the Local Legislatures act in their capacity as Reforming Power of the Constitution, they must respect the norms of the reform procedure contained in Article 135 of the Constitution, which implies that it is legally possible for said power to issue some reform with disregard for such procedure. When this happens and an individual promotes an amparo trial against said act, the District Judges cannot, without more, consider that in these cases the inadmissibility of the trial is manifestly and indubitably actualized, since from the mere referral of section XVIII of Article 73 of the Amparo Law, to Article 103 of the Constitution and Article 1, section I, of the Amparo Law itself, a normative statement containing the inadmissibility of amparo against a constitutional reform cannot be obtained. This leads to the conclusion that this foundation is not valid to dismiss outright the related claim against a procedure of reforms to the Mexican Political Constitution.

After the resolution of both amparos 186/2008 and its reiteration 2021/2009, as well as the Various file 489/2010, the Constitution would be the object of decrees #193 and 194 of constitutional reform, in matters of amparo and human rights, published in the DOF, on June 6 and 10, respectively. As is known, the latter enshrined the broadest recognition of human rights from both national and international sources (Article 1), while the former reinforced the amparo trial as the main means of constitutional control against norms with general effects.

The problem is that after these constitutional reforms, the ordinary legislator issued a “new” Amparo Law, published in the DOF, on April 2, 2013, in which it provided:

Article 61. The amparo trial is inadmissible:

I. Against additions or reforms to the Mexican Political Constitution.

[…]

It is imperative to mention that previously there was no such express clause to decree inadmissibility and that its constitutionality is itself dubious. Above all, given the two constitutional reforms, recently mentioned. This does not cease to constitute a great paradox… it is necessary to use the Amparo Law to declare unconstitutional a fraction of the law itself or to disapply it.

III

To conclude, I would like to reiterate that in the case of decree #253 of constitutional reform, in judicial matters, published in the DOF, on September 15, 2024, there is at least one procedural vice. The initiative of reform was discussed and approved, first, in the Chamber of Deputies, during the LXV Legislature, which concluded its functions this past August 31^st; and, afterwards, in the Senate Chamber, but in the LXVI Legislature, which began on September 1^st of the current year. Consequently, it violates the bicameral system and the ordinary legislative procedure, which is the basis for that of a constitutional amendment or reform and requires discussion and approval in both chambers. In accordance with Articles 50, 72 and 135 of the Constitution.

In addition to the above, the decree may contain competence defects, by contravening the principles of constitutional supremacy, the possibility to amend or reform, and inviolability (Articles 133, 135 and 136, respectively), as well as the recognition of human rights from both national and international sources, interpretation according to the constitution, and the obligation to promote, respect, protect and guarantee human rights in accordance with the principles of universality, interdependence, indivisibility and progressiveness (Article 1), among others. Therefore, the reform violates human rights and principles enshrined, whether in Article 94 of the Constitution, namely that of irremovability (they cannot be removed except in cases of liability); and, in Article 8.1 of the American Convention on Human Rights (Pact of San José), that is, judicial impartiality and independence.

Suggested citation: Imer B. Flores, Symposium on the Judicial Overhaul in Mexico Part 8: The Problem of the Amending or Revising Power and Its Constitutional Limits, Int’l J. Const. L. Blog, Oct. 10, 2024, at: http://www.iconnectblog.com/symposium-on-the-judicial-overhaul-in-mexico-part-8-the-problem-of-the-amending-or-revising-power-and-its-constitutional-limits/