Draft Decree to Reform the Regulatory Law of Sections I and II of Article 105 of the Political Constitution of the United Mexican States

Executive Summary:

• On October 25, 2023, a draft Decree was presented to the Chamber of Deputies that modifies the Regulatory Law of Sections I and II of Article 105 of the Political Constitution of the United Mexican States. The objective of this initiative is to limit the scope of the judgments of constitutional controversies or actions of unconstitutionality with regard to the admissibility - or inadmissibility - of the amparo trials that are brought against the same act.
• We consider that the reform constitutes a regressive measure against the human rights recognized by the Federal Constitution, specifically the right to access justice.

During the first months of this year, the Senate of the Republic worked on the Draft Decree Initiative that seeks to issue the National Code of Civil and Family Procedure.

The reform proposes to modify the second paragraph of article 42, the first paragraph of article 72 and to add a new paragraph to article 43 of the Regulatory Law of Sections I and II of Article 105 of the Political Constitution of the United Mexican States. With these modifications, the effects of the sentences issued in constitutional controversies or actions of unconstitutionality are sought.

According to our legal system, there are various means of constitutional defense, among which are constitutional controversies, unconstitutionality actions and amparo trials. These means of defense, although they are aimed at challenging, among others, actions that are considered contrary to our Federal Constitution, are considered by our normative system as independent procedures, with the purpose of guaranteeing the existence of multiple ways to defend the legality of the actions of public power and, consequently, the rights of those governed.

In this regard, the purpose of the draft decree under analysis is (i) to establish that judgments on constitutional disputes and/or actions of unconstitutionality that do not obtain a vote from at least 8 ministers - qualified majority - may not be invoked by various jurisdictional authorities to base their actions (even when there is a simple majority), as well as (ii) to provide that no amparo trial or other recourse will proceed against said acts or general rules.

While it is true that our legal system requires a qualified majority to issue a general declaration of unconstitutionality, which expels the act or norm from our legal system, the reform seeks to limit the cases in which a resolution issued through a constitutional controversy or unconstitutionality action reaches the so-called simple majority. This is because, even without a general declaration of unconstitutionality, there may be a majority that considers the act or norm unconstitutional, which could be used by other people in amparo trials.

Therefore, in those cases where the action or controversy raised is resolved by a simple majority, it must be considered that there are sufficient elements for, through an amparo trial, the unconstitutionality of the act to be declared, considering that it was contrary to the Federal Constitution. In this way, the arguments raised establish precedents for requesting amparo if there are substantial similarities between both cases.

For the above reasons, and pending the submission of the bill to the Justice Committee of the Chamber of Deputies for analysis, we consider that, if this reform is approved, the right to constitutional defense enshrined in favor of citizens would be violated. By preventing the admissibility of the amparo trial even when the sentence has obtained a simple majority, this measure would constitute a step backwards in the human rights and individual guarantees recognized by the Political Constitution.

Given the President's insistence on reforming general regulations with the aim of strengthening his public policies and implementing measures in this regard, it is essential to analyze the repercussions of this modification. With it, the affected individuals will be deprived of their right to file an amparo lawsuit, even if the violation of their rights is evident and has been endorsed by a simple majority of the Ministers of the Supreme Court of Justice of the Nation.

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