Monday, January 10, 2005

 

Mexico’s Supreme Court is on the threshold of crises

 

By Enrique Andrade González

 

During the final days of 2004, justices of Mexico’s Supreme Court made several decisions that have put the nation’s constitutional order at risk.  Correspondingly, they have most certainly brought into question the repute of the nation’s highest court.

 

One of the accomplishments of the past four years, a result of Mexico’s political transition — and a truly important asset in an historic balance that had to be achieved following the 2000 elections, is respect for the division of powers as called for in the Mexican Constitution.

 

Mexico’s new political order began with the midterm elections of 1997, when the former government’s Institutional Revolutionary Party (PRI) lost its past majority permanence in Congress.  This political order was yet more defined with the 2000 elections and alternation in the presidency, and it was ratified by the congressional elections in 2000 and 2003.

 

These changes foreshadowed developing federal government controversies with the states and municipalities, many of which are natural occurrences and even convenient when and if they are resolved through established constitutional order and arbitration of the dispute.  And this means the Supreme Court must remain above the political conflict.

 

For the second time in less than three months the Supreme Court as a whole, the Chief Justice personally and two of the court’s 11 justices are considered suspect for being part of the conflict that currently exists between the executive and legislative branches of government rather than part of the solution.

 

There are two reasons for this.  First, the Court admitted the budget-related suit filed by the President against the Chamber of Deputies, and responsibility over the matter was given to a single justice during the vacation period.  Second, he ruled on behalf of the Court in favor of a suspension in spending of MP$4 billion [US$355.7 million], in the challenged budget decree, until the matter is resolved.

 

According to laws over the judiciary, the Supreme Court has two sessions annually.  The first begins on the first weekday of January and ends on the last weekday of the first two-week period of July; and the second runs from August 1 to the last weekday of the first two weeks of December.  That means, with respect to December 2004, as of December 17 the Court was not in session and therefore it was in recess.

 

In Mexico a constitutional challenge must be heard by the Supreme Court as a whole, and the person who must handle such matters for the Court, and assign certain proceedings to different justices for their legal opinions and judgments, is the Chief Justice.  But this was not done with the constitutional challenge submitted on December 21, 2004.

 

On the basis of internal Court accord 12/2004, the justices who remained on duty during the recess period could address emergency matters that would normally require action by the full Court.  However with respect to what was done, they were not authorized to turnover the file for resolution to a single justice.  By doing so they went beyond their legal rights, fulfilling a duty that according to law must be carried out only by the Chief Justice, and a requisite that cannot be altered with an internal accord.

 

The justice who received the suit, after analyzing it, declared acceptance and granted the suspension-in-part of the 2005 budget expenditure decree that had been approved by the Chamber of Deputies.  By doing so, according to opposition party deputies, not only did the justice go above the law, he violated the law itself as it specifically states that a suspension cannot be granted when the controversy involves general rules.

 

Seemingly the criteria that prevailed was that this would not be treated as a general rule, this by handling it as a decree that originated through an exclusive empowerment of the Chamber of Deputies, or else like the suspension would not affect public interests.

 

If what was done during the recess period is not modified, any judgment that is handed down by the Court with respect to the budget controversy and challenge will be questioned at a key time for constitutional order in Mexico.

 

As such, the least costly solution for the Supreme Court — legally and politically — would be to annul the decisions made by its two justices during the recess period and start the process for admission of the suit all over again.

 

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Enrique Andrade González (a www.mexidata.info columnist) is an attorney and Mexican business consultant with offices in Mexico City.  Lic. Andrade, who received his LL.M. in Constitutional and Protection (“Amparo”) Law from the Universidad Iberoamericana, is also a law professor at the Universidad Intercontinental.  His e-mail address is enrique@abogadomx.com.