Editor’s Note: Today we publish the 2016 Report on Mexican constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—José Ramón Cossío Díaz, Mexican Supreme Court Justice; Constitutional Law Professor at Instituto Tecnológico Autónomo de México (ITAM); member of El Colegio Nacional; Carlos Herrera Martin, Teaching Fellow at University College London; Raúl M. Mejía Garza, Secretary of the office of Justice José Ramón Cossío, Supreme Court of Justice; Constitutional Law Professor at Centro de Investigación y Docencia Económicas (CIDE); Camilo Saavedra Herrera, Research Fellow at the Center for Constitutional Studies of the Supreme Court; Mariana Velasco Rivera, J.S.D. candidate at Yale Law School; Visiting Researcher at the Center for Global Constitutionalism – WZB, Berlin; Yale Fox International Fellow at Freie Universität, Berlin
Taking a look at the developments in Mexican Constitutional Law in 2016 illustrates well the transformation the justice system has gone through in the last decade, both procedurally and substantively; and, the complex social reality of the country. In only a decade, the criminal justice system was transformed of an inquisitorial to an accusatory model in 2008; long-standing procedural rules of the individual constitutional complaint mechanism, the Juicio de Amparo (amparo suit), were modified in 2011; and, shortly after, human rights established in international treaties from which Mexico is part were incorporated as part of the constitution. All of these changes place a bigger burden on the judiciary and particularly on the Mexican Supreme Court (hereinafter the Supreme Court or Court). As we will see in the following sections, one way or another these transformations are manifesting. The new criminal justice principles are colliding with government interests to tackle serious drug-related violence (Section III); the Supreme Court is extensively taking into account international human rights instruments to adjudicate the increasing number of amparo suits in its docket (Sections II and IV); and the Court is often having to solve cases closely related to state surveillance and national security.
II. The Constitution and the Court
The design of the Mexican constitutional justice system has become increasingly robust throughout constitutional history. The constitution of 1917 was born with a substantive charter of rights that included the social justice demands of the revolution and inherited the worldwide known individual constitutional complaints mechanism created in the 9th century with American and European influences: the amparo suit. For almost 80 years, the amparo suit was virtually the only mechanism to bring constitutional questions to the Supreme Court until 1994 when, in the midst of the fall of the single-party hegemonic regime, the dormant controversias constitucionales (competence allocation mechanism) were modernized and the acciones de inconstitucionalidad (abstract judicial review) were adopted. Both the competence allocation mechanism and abstract review are concentrated forms of review granting standing to a limited number of actors (i.e. the executive and legislative powers, the attorney general, legislative minorities, political parties, etc.), whereas the amparo suit is a semi-concentrated and concrete form of review granting standing to anyone who considers that their constitutionally protected rights have been violated. Although the modernization and adoption of concentrated forms of judicial review have put the Court in a more prominent position as an arbiter of political disputes, the amparo suit remains the only mechanism available for individuals to bring cases before the Supreme Court.
Within this system of constitutional justice, the Supreme Court is the highest authority for constitutional interpretation. Its membership comprises 11 Justices appointed by the President (in charge of nominating) and the Senate (in charge of confirmation by a qualified majority) to serve for 15-year terms. The Supreme Court convenes in en banc sessions (Pleno) three times a week and in two five-judge panel sessions (First Chamber and Second Chamber) once a week. Yet, the two panels adjudicate the vast majority of cases—which in addition happen to be amparo suits.