The General Declaration of Unconstitutionality is one of the most important instruments for the protection of citizens. Since the constitutional reform of 2011, it appears in article 107 of the Magna Carta and was regulated in the new Amparo Law in the fourth title, sixth chapter, so this constitutional figure:
When a citizen files an amparo, he challenges the law or an act of law enforcement. For before the constitutional reform on the matter and the entry into force of the new law of April 2, two thousand and thirteen, there was a formula of inequality.
Since when a person fought a law only that person benefited, that was the great problem of inequality that we had because whoever had money went with a lawyer specialized in amparo, who could process his amparo trial well, and consequently they obtained a amparo against the law and benefit from it.
Now, the indirect amparo sentences may have general effects, with the exception of tax matters. In other words, the protection granted to a person may be of benefit to all or to a specific or collective group.
Now the new Amparo law in force in articles 231, 232, 233, 234 and 235, establishes that the process will be as follows:
When the Chambers or the Plenary of the Supreme Court of Justice of the Nation, in the indirect amparo trials under review, resolve the unconstitutionality of a general rule for the second consecutive time, the president of the respective chamber or of the Supreme Court of Justice de la Nación will inform the issuing authority of the standard.
Likewise, when the Plenary or the Chambers of the Supreme Court of Justice of the Nation, in the indirect amparo trials under review, establish jurisprudence by reiteration, in which the unconstitutionality of the same general rule is determined, it will proceed in terms of Article 107 fraction II, third paragraph, the Supreme Court of Justice of the Nation, will notify the issuing authority, once the period of 90 calendar days has elapsed without the problem of unconstitutionality being overcome, that is, without the rule being amended or repealed Declared unconstitutional, the plenary of the Supreme Court of Justice of the Nation will issue the corresponding general declaration of unconstitutionality provided it has been approved by a majority of at least eight votes.
When the issuing body of the norm is the federal or local legislative body, the term of ninety days shall be computed within the business days of the ordinary periods of sessions determined in the Federal Constitution, in the Statute of Government of the Federal District, or in the Local Constitution, as the case may be.
This declaration shall be forwarded to the Official Gazette of the Federation and to the official body in which the rule declared unconstitutional was published for publication within seven business days. This would be the procedure. With the exception of attributive laws.
It is then decided that for the general declaration of unconstitutionality to be carried out, first there must necessarily be five jurisprudences by reiteration, so that the origin of the respective procedure exists, and once the ministers in plenary session or in the chambers, notify the authority issuer, and after ninety working days, the plenary session of the highest court in the country, by a majority of eight votes, will proceed. In this situation it occurs that in the indirect amparo trial that is declared general unconstitutional the effect it has is that the responsible authority that executed it may, according to the principle of relativity of the sentences, be the only one who promoted the amparo trial, this was with the previous system today with the reform of April two of two thousand thirteen,the sentence will not protect only who promoted, but all those who are located in that case, group or community, will benefit from the protection, apart from who promoted. What with the previous one could not.
Then, on the other hand, it does not go unnoticed that the new Amparo Law, issued on April 2 of two thousand and thirteen, was reflected in the General Agreement 11/2011 procedure, therefore, on September 23, 2013, General Agreement 15/2013, regarding the procedure for the general declaration of unconstitutionality, published today in the Official Gazette of the Federation, was issued by the Plenum of the Supreme Court of Justice of the Nation (SCJN).
This reissue of the aforementioned procedure is due to the fact that article 233 of the new Amparo Law establishes that the general declarations of unconstitutionality may not be made with respect to theses approved in accordance with the previous law.
The new procedure for the general declaration of unconstitutionality is hereby transcribed, which will enter into force on October 9, 2013, and which abrogates General Agreement 11/2011, of October 4, 2011, which contained the previous procedure.
Agreement:
First. This General Agreement is applicable with respect to the indirect protections under review in which the constitutionality problem of a general rule remains, except in the case that they correspond to federal, local or municipal tax matters.
The general declarations of unconstitutionality may only be made with respect to the criteria issued in the amparos under review in accordance with the constitutional system in force as of October 4, two thousand and eleven.
If in the same indirect protection under review the problem of constitutionality of general tax regulations and of diverse nature persists, the provisions of this normative instrument will be applied, as appropriate, regarding the pronouncement issued in relation to the latter.
Second. Once the Plenary or the Chambers of this High Court determine for the second consecutive time the unconstitutionality of a general non-tax rule, they will inform the President of this High Court, in order to order the issuing authority to inform the issuing authority of those precedents.
Third. When the Plenary or the Chambers establish jurisprudence by reiteration, in which they determine the unconstitutionality of a general non-tax rule, they will inform the Presidency of this High Court, in order that by means of a presidential provision it is ordered to notify the which refers to the third paragraph of fraction II of article 107 of the Constitution, integrate the file of the respective general declaration of unconstitutionality and turn it over to the corresponding Minister.
A certified copy of the respective judgments and, preferably, of the corresponding jurisprudential theses will be attached to the aforementioned official letter.
Fourth. When a Collegiate Circuit Court integrates jurisprudence on the unconstitutionality of a general non-tax rule, it shall inform the respective Plenum of Circuit, which shall communicate it in writing to the Presidency of the Supreme Court of Justice of the Nation, attaching a certified copy of the five corresponding executions and, as the case may be, of the respective thesis or theses, in order to issue the provision indicated in the preceding point, in which it will be indicated, where appropriate, that the jurisprudential criterion has not been matter of analysis by this High Court and if it is pending to resolve any contradiction of thesis on the constitutionality of the respective general rule.
If this last assumption is verified, the merits of the general declaration of unconstitutionality will not be resolved until as long as the corresponding ruling in the thesis contradiction is not issued, which should preferably be done by the Full Court within the period of ninety days to referred to in the third paragraph of section II of article 107 of the Constitution.
In case of doubt about the tax nature of the general rule whose unconstitutionality has been determined in jurisprudence by a Collegiate Circuit Court, before notifying the issuing authority, the Minister President of the Supreme Court of Justice of the Nation will consult the Court Plenary in private session.
Fifth. If, before the ninety days counted from the day after the notification by office that is made to the issuing authority of the respective general rule, a new general rule that in the opinion of the Full Court modifies it, comes into effect, the relative general declaration procedure must be declared without matter. The Reporting Minister will submit the respective draft resolution to the Plenary.
Sixth. Within the ten working days following the expiration of the aforementioned ninety-day period, without having overcome the problem of unconstitutionality of the respective general rule by issuing a new general rule, the Minister-Rapporteur must refer to the General Secretariat for Agreements of this High Court the corresponding draft resolution, which must be listed for a public session to be held within the subsequent ten business days.
Seventh. When issuing a general declaration of unconstitutionality, the Plenary must indicate the date from which it will take effect, as well as its scope and conditions, taking into account the provisions of article 234 of the Amparo Law.
If the draft general declaration of unconstitutionality does not reach the required qualified vote, the matter will be dismissed and its file will be ordered.
Eighth. The General Secretariat for Agreements will take the necessary steps so that the general declaration of unconstitutionality issued by the Plenary of this High Court is published in the Official Gazette of the Federation and, where appropriate, in the various official body in which it was published. the rule declared unconstitutional, within seven business days following the approval of the respective increase, including the corresponding votes.
From the foregoing, this procedure also begins with five jurisprudences, but the peculiarity is that when the plenary or in court reach the second jurisprudence considered as a general declaration of unconstitutionality, they will inform the President of this High Court, in order order to inform the issuing authority of the existence of these precedents.
And once you have the five jurisprudence by reiteration, the constitutional body will inform the Presidency of this High Court, in order that by means of a presidential provision it is ordered to make the notification referred to in the third paragraph of the fraction II of the constitutional article 107, this within 90 calendar days, and integrate the file of the respective general declaration of unconstitutionality and turn it over to the corresponding Minister to carry out the respective study, a certified copy of the respective judgments shall be attached to said document, and preferably, from the corresponding jurisprudential theses.
And if for any reason there is a pending contradiction in the thesis on the constitutionality of the respective general rule, this last assumption will be verified, the merits of the general declaration of unconstitutionality will not be resolved until the corresponding decision is issued in the contradiction of thesis.
Therefore, if before the ninety days counted from the day after the notification takes effect, by official letter to the issuing authority of the aforementioned general rule, a new general rule comes into force that, in the Court's opinion, Plenary modify that, the relative general declaration procedure must be declared without matter and the Minister-Rapporteur will submit the respective draft resolution to the Plenary, also if within the ten working days following the expiration of the aforementioned period of ninety days, without Once the problem of unconstitutionality of the respective general norm has been overcome by issuing a new general norm, the Minister-Rapporteur must send the corresponding draft resolution to the General Secretariat for Agreements of this High Court,which must be listed for a public session to be held within ten subsequent business days.
If the draft general declaration of unconstitutionality does not reach the required qualified vote, the matter will be dismissed and its file will be ordered.
The General Secretariat for Agreements will take the necessary steps so that the general declaration of unconstitutionality issued by the Plenary of this High Court is published in the Official Gazette of the Federation and, where appropriate, in the various official body in which it was published. the norm declared unconstitutional, within the seven working days following that in which the respective increase is approved, including the votes of the corresponding ministers, this declaration is unique and exclusive power of the Supreme Court of Justice of the Nation.
As noted, the procedure is similar and once the period of ninety calendar days has elapsed, with the exception that if, before the ninety days from the day after the notification takes effect, a new general rule will enter into force. that in the opinion of the Full Court modifies that, the relative general declaration procedure must be declared without matter and the Speaker will submit the draft resolution to the Plenary, when the previous regulatory provision to article 103 and 107 of the Constitution, said that not once decreed the jurisprudence or thesis of unconstitutionality could not be modified and in the aforementioned stable agreement an exception to what happened.
Finally, if within the ten working days following the expiration of the aforementioned ninety-day period, without the problem of unconstitutionality of the respective general rule having been overcome by issuing a new general rule, the Minister-Rapporteur must refer to the General Secretariat of Agreements of this High Court the corresponding draft resolution, which must be listed for a public session to be held within the next ten working days, and issue the respective resolution, a situation that I observe is that the procedure extends the term a little longer ninety days, for issuance and publication.
For the complaint that a complainant stipulates that the general rule declared unconstitutional is being applied to him again or applied to him, the District Judge will give the parties a hearing so that within three days they expose what is appropriate to their law, after this term will dictate resolution within the following three days if it were in the sense that the unconstitutional general rule was applied to order the authority to stop doing it, and if it does not do it in three days it will be what they have and will be separated from the position taking the corresponding procedure and shall record it before the District judge, for the crime of non-compliance with the amparo judgment.
1.-What did I learn in this activity? The legal figure of general declaration of unconstitutionality, which did not know that what is provided in article 234 of the current amparo law was modified by general agreement 15/2013, of September of last year, in which other peculiarities of the procedure arise respective, such as the extension of the terms, and the warning since there is a second general criterion of unconstitutionality.
2.-How does my learning enrich with this type of activities? A lot, since it made me research and investigate a topic that is novel and that is barely emerging in legal life, since it updated me on criteria.
3.-How would you evaluate my performance in this activity? Excellent, as it intrigues me to study law.
