This article is based on one main idea: Constitutional justice has an immediate relationship with the form of political organization of the State. Based on this assertion, the federal system serves as the context for the testing of the most appropriate mechanisms for the defense of the Constitution.
Within the framework of the tasks of defending the constitution, we believe that the member states should take important actions to collaborate in what we call “dual or concurrent constitutional justice”.
Here, we take as a reference the Mexican federal system, which has a hybrid system of control of constitutionality. On the one hand, the main means of defense are under the jurisdiction of federal judges, specifically the Supreme Court of Justice of the Nation; but, on the other hand, there is also the obligation of local judges to comply with the mandates of the Constitution.
Thus, the Mexican federal system has a strong impact on the way in which constitutional justice is carried out, which in technical terms is referred to as “the control of constitutionality”.
In this sense, constitutional justice can be seen as an exercise of double competence; on the one hand, we refer to the federal type of competence; on the other hand, to the local type of competence.
The first mentioned competence refers to the amparo trial heard by federal judges and to the procedures that are the exclusive competence of the Supreme Court of Justice of the Nation: Actions of Unconstitutionality and Constitutional Controversies.
Local jurisdiction has a very particular complexity, because not all the member states of the federation have local constitutional courts and even in the case of the states that do have them, the decisions of these local courts do not have definitive effects.
Constitutional Justice in Mexico and Federalism
As can be understood, the difficulties of constitutional justice in Mexico are identified in at least the following aspects:
- The existence of a federal system that in terms of control of constitutionality, has not materialized in this way; that is to say, constitutional justice has not been “federalized”.
- The duality of federal and local judges in charge of the defense of the Constitution, which has not allowed local judges to participate with definitive sentences, since these can be reviewed by the Supreme Court of Justice of the Nation.
- The strong centralization of constitutional justice: The amparo trial is federal and actions in electoral matters, controversies and actions of unconstitutionality; the last two are the exclusive competence of the Supreme Court of Justice of the Nation.
- The existence of a federal constitutional justice and a local constitutional justice that are not properly articulated.
- The difficulties to make the vertical inter-organic relations in judicial matters allow the local judges to be true defenders of the Constitution.
Based on this problem, we believe that the great challenge lies in making Mexico really function as a federation.
I do not want to dwell on this central issue, but it is important to say that the difference that the doctrine points out between original and residual competences is an essential part for the correct understanding and exercise of a federal system.
If it is understood it correctly, in a federal system the original competences belong to the member states; we think that the Mexican Constitution drafted it in a different sense, since Article 124 states that the competences not exercised by the federal authorities shall be understood as reserved to the member states; that is to say, the residual competences correspond to the federal entities.
This is the outlook that we generally find in the competencies of federal authorities and local bodies. With their local and residual powers, local judges can play little part in the control of constitutionality.
At the core of this topic, we look at the need to structure a federalism where local constitutional justice can be valued and promoted to serve effectively for the defense of the “essential contents” of the Constitution, among which human rights stand out.
For the proper functioning of the Mexican federal system, we think of a thesis that explains the federal State as a form of juridical-political organization with a dual level of competence.
This same idea allows us to understand that the federal State is not reduced to the relationship between the center and the periphery, but that it is a juridical-political order with a double interorgan dimension:
the horizontal interorganic dimension (typical in the “federal” organs), and the vertical interorganic dimension (which refers to the relationship between federal and local organs).
In this way, we can criticize the idea that federalism is based on the hegemony of the federal sphere, always giving greater importance to matters corresponding to that field, leaving the federative entities in second place.
Local Constitutional Justice
The structure of Mexico, it is a Federal State with 31 federative entities and Mexico City (the capital). All of them have their own constitution, their own recognised human rights, and their own constitutional mechanisms.
From today, they are 18 federative entities from 32, that instead of having a specialised body to protect their local constitutional order, they let the Plenary of the Judicial Local Power to function as a constitutional court. The other 14 entities have created constitutional chambers, composed by judges from other chambers, nevertheless the members do not have the profile of a constitutional judge.
Hitherto, the main obstacle for these constitutional chambers, is that they do not have a final decision regarding their judgments. Furthermore, the Supreme Court of Justice stated that federal courts can solve allegations against local constitutional resolutions through the action of amparo.
There are many judgments from the Supreme Court, where local constitutional justice was obstructed to be developed, just to mention some of them:
- Local Constitutional Bodies cannot interpret the federal constitution, even if they are judging the human rights protection lawsuit (Constitutional Controversy 16/2000).
- Local Constitutional Bodies cannot include human rights from international law or from the federal constitution in their judgments (Direct Amparo 6/2012).
- Local Constitutional Bodies are precluded from hearing the mandatory human rights restitution suit against, but unfulfilled recommendations issued by Human Rights Commissions (Action of Unconstitutionality 15/2017).
- Local Constitutions and Local Constitutional Bodies can extend, develop, and strengthen fundamental rights and create new ones, if they do not conflict with those recognised by the federal constitution and treaties (Action of Unconstitutionality 15/2017).
From the above, we can affirm that federal constitutional justice has arrogated to itself constitutional justice in Mexico. Moreover, human rights protection at the local level is weak, since local constitutional bodies are unable to interpret the federal constitution, and even treaties, which is a transgression to the conventional constraint of Mexican authorities to exercise the conventionality control which is the interpretation of the Inter-American Human Rights System (treaties and judgements) and the rest International Human Rights Law applied (UN Human Rights System, other treaties, customary international law and jus cogens norms).
Until federal constitutional justice accepts the coexistence with the local constitutional justice and recognises it in its jurisprudence regarding the concept of constitutional parameter (the set of human rights from international and national law), we propose that local constitutional bodies make use of the “pro persona principle” contained in article first of the federal constitution, which states that the authorities will always guarantee the broader protection of people.
Consequently, we consider that local constitutional judges should be aware of which legal/constitutional norm (local constitutions, federal constitution, or treaties) is more protective to human beings. In the same way, it is desirable the establishment of local constitutional courts independent from the local judicial power and composed by real constitutional judges, lawyers with expertise in constitutional and international law, appointed by the three powers in a transparent process (something inexistent at the federal level concerning the Supreme Court of Justice and its members).
Speaking about the profile of constitutional judges in Europe, Italy enables university professors to become constitutional judges, as the case of Gustavo Zagrebelsky, former president of the Constitutional Court of Italy and professor of Constitutional Law in the University of Turin. By contrast, the Constitutional Council of France is composed mainly by politicians and can be composed by former presidents, in consequence politics is imposed in detriment of justice.
The creation of a Federal Constitutional Court represents the great engine for the proper functioning of constitutional justice in Mexico, while recognizing and respecting the competence and possibilities of local judges.
In a federal system, the Federation is all of us. The power belongs to all the federative entities and constitutional justice must begin at the local level.
In conclusion, we have still spaces to fill with respect to local constitutional justice. Unfortunately, at the time as constitutional chambers and federalism are weakening, centralism is growing. We believe sooner or later constitutional justice will function in two dimensions: local and federal, and both will cooperate and coexist in favour of human rights and federalism.