Caption “Nowadays people only care about their rights. Reminding him that he also has duties and responsibilities is an act of courage that does not correspond exclusively to politicians. ”
"I contend that the more defenseless a creature is, the more rights it has to be protected by man against man's cruelty." Mahatma Gandhi.
1. Introduction
On the occasion of the debates that have been held in Mexico, with the implementation of international human rights to the constitution of the Mexican State, in which it is forced to always guarantee the intrinsic human rights of man, respecting the dignity of the same, in front of even rampant government, which can harm the governed, directly or indirectly affecting their legal sphere, so I have wondered if the Mexican legal system actually offers any effective mechanism for the protection of human rights, not only individually, as they would be the rights of property, freedom, equality, legal or political security, but in addition to those rights of a social nature, such as cultural and social rights.
In this sense, the amparo lawsuit protects the majority of individual court rights; However, the same does not happen with political, social and cultural rights, since the first of them has been forbidden by Mexican legislation to the knowledge of the amparo lawsuit and, the last, concealing budgetary limitations, substantive impediments and procedures to deny access to this form of protection of these fundamental rights via amparo trial, and the interference of the application of international conventions and treaties in favor of the Mexican guarantor, we will also observe the antecedents in Mexico of the protection of human rights, formerly called individual guarantees, and based on reform, the new paradigms of human rights.
For this reason, in these lines I will try to structure a reasoning that serves as support to bring before the Mexican constitutional justice the amparo trial, as a means of defense not only of individual human rights, wrongly called "individual guarantees", but also human rights of an economic, social, cultural and even political, human nature in the international arena that today the constitutional reform provides for the de-application of federal laws for the application of conventions, international treaties, in which human rights are applied, " we are talking about the instrument of conventionality, and the constitutional block ”, principles that are included in the Political Constitution of the United Mexican States.
1.1- Status of human rights in Mexico
In Mexico, Human Rights are constitutionally recognized in the amendment to its Magna Carta on June 10, 2011, incorporating them in its first article and elevating their protection to the constitutional level.
2. Background. Human rights in the history of Mexico
Human Rights can be appreciated in the history of Mexico, from the moment that the native Indians are defended from the abuses that the peninsular colonizers committed against them. Fray Bartolomé de las Casas and Fray Alonso de la Vera Cruz, were moved to see that the arbitrariness of the colonizers had no justification, so they chose to defend the rights of the "natives" considering them as their own subjects, as their equals.
The Laws of the Indies were intended to protect the natives through Encomiendas, a figure that was distorted by the encomenderos, who far from taking the indigenous under their protection, exploited them and disposed of them as if they were things and not people.
Already in 1847, with the validity of independent Mexico, the so-called Procuraduría de los Pobres was born in San Luis Potosí, as Governor Ponciano Arriaga, whose main action was to deal with people of low social class who had suffered grievances by some authority, in addition to having powers to report and request compensation for the corresponding damage.14
In the Yucatan Peninsula in his discontent with the centralist regime framed in the then current Constitution of 1836, commonly known as The Seven Laws of 1836, he threatened his intention to separate from the Mexican Republic. With the consequent concern, it was given the power to legislate its own legal regime, as if it were a federalist State giving rise to the Yucatan Constitution of March 31, 1841.
This constitution saw fit to include a project in article 53, prepared by Manuel Crescencio Rejón, which expressed verbatim: “It corresponds to this assembled court: 1st. Protect in the enjoyment of their rights those who ask for their protection against the orders of the Governor or Executive meeting, when in them the Fundamental Code or the laws have been violated, limiting themselves in both cases to redress the tort in the appropriate part.
Subsequently and thanks to the collaboration of Mariano Otero, the Amparo Trial was translated, on article 25 of the Reform Act 1847, with which this trial was established at the Federal level, and later reflected in the Federal Constitution of 1857 and 60 years later in the Political Constitution of the United Mexican States of 1917, which is still in force in the country today. fifteen
In the same Constitution of 1857, 29 articles dealing with the right to liberty, to education, to just remuneration for work, to the free manifestation of ideas, the freedom to write or publish, the right to petition, the right of peaceful assembly and association, free transit, not to be disturbed without prior judicial motivation, guarantees for the accused of a crime, to personal property, among others.
With the entry into force of the Political Constitution of the United Mexican States of 1917, 38 articles dealing with the obligation to comply with it, the right to freedom, to education, are instituted in its First Title called On Individual Guarantees. from equality between the sexes, to free profession, to the free expression of ideas, to publish or write, to the right of petition, of free association or assembly, to free transit, of the right to be tried, not to be affected for the retroactivity of the laws, to not be bothered by authorities without previous order of the competent authority, to the guarantees within a trial, of religious freedom, the right to nationality, among others.
It was not until 1989 that the General Directorate for Human Rights of the Secretariat of the Interior of the Mexican Executive Power was created.
The creation of the National Commission on Human Rights was registered in 1990 and the National Ombudsman was created by decree issued by the President of the Republic, with the approval of the Senate, holding its first session on June 18 of that same year 16; however, on September 13, 1999, it was established that the President of the National Human Rights Commission (CNDH) will be elected by the vote of two thirds of the members present in the Senate and will last for five years, being able to be I am reelected only once.
In the original text of the Political Constitution of the United Mexican States of 1917, the so-called human rights appear with the name of individual guarantees, which in the end would make it appear that they are not homologated to the human rights that would be signed in the various treaties. international, so on June 10, 2011 a constitutional reform is published that changes the title of Title One of the Political Constitution of the United Mexican States of 1917, to replace: Of Individual Guarantees, by: Of Human Rights and their Guarantee.
This new affirmation of human rights in the Constitution is considered enormously significant, since it manages to standardize with the human rights that are promulgated internationally, since the term individual guarantees was not used internationally, which could produce differences in its interpretation.
These first 38 articles of the Constitution have undergone 125 reforms since their initial promulgation to date, which have substantially modified them.
In favor of the homologation of Mexican law, with international law, was the resolution of the Court that in June 2011, determined that judges should exercise control unofficially, of the rights acquired by Mexico through international treaties.
3. Human rights and the constitution
Human Rights were born with the purpose of recognizing guarantees to human beings, but all these ideas needed to be put down on paper, in order for this to be a foundation for the subsequent and well-executed execution of what the law said would be done.. And that the State itself recognized this as a principle and protected them.
In its beginnings there were various constitutional letters, which motivated the idea of defending Human Rights, that these are the main guarantees that every human being has only for the fact of being born: right to life, liberty, dignity, equality, security, physical integrity and property of human being.
The 1917 Constitution opens up an extensive panorama of the main rights of citizens. The first 29 articles of this Magna Carta, which are civil rights, are described in the following statements:
Art. 1. ” In the United Mexican States, all persons shall enjoy the human rights recognized in this Constitution and in the international Treaties to which the Mexican State is a party, as well as the guarantees for their protection, the exercise of which may not be restricted or suspended, except in the cases and under the conditions established by this Constitution. "
Art. 2. The rights of indigenous peoples.
Art. 3. Every individual has the right to receive education, secular and free.
Art. 4. The equality of men and women will be equal, as well as the guarantees and rights of every human being to seek their protection and satisfy their needs for food, shelter, security and the State is its duty to protect them and provide these services.
Art. 5. The free choice of a profession.
Art. 6. Right to the expression of ideas without there being coercion by the State on his person, as long as he acts in accordance with the Law. Citizens have the right to information.
Art. 7. Freedom of writing on any matter, without ceasing on the part of the authority.
Art.8. right of petition.
Art. 9. Right of association.
Art. 11. Right to free movement of citizens within the national territory.
Art. 16. No one can be bothered in person, family, home work, papers and possessions, as well as the right to the protection of their personal data, access, rectification and cancellation of the same.
Art. 24. Every man is free to profess the religious belief that pleases him the most and to practice the ceremonies, devotions or acts of the respective cult.
Art. 27. Right to land ownership. Now, let's go to our reality, the State-Individual relationship; We will see that far from being the best covenants or marriages in itself is a well-defined utopia, human rights mark the limits of action that the State has towards Individuals, we know that the state is managed by normative precepts, which is defined by a law and that individuals must also follow, to avoid breaking the line of peace between these two entities. But what can you do or who should you go to when any of the aforementioned parties have a conflict with each other?
4. The Ombudsman in Mexico
Fortunately, after the constitutional reform of January 28, 1992 (art. 102 section B), the National Human Rights Commission (CNDH) was created, a body that, although created by the State, was given the power to be a “decentralized agency” with own legal personality.
Now what is he in charge of? Or what is mission? It is in charge of defending the Rights in the articles that I mentioned previously and its mission is to ensure that they are fulfilled.
The CNDH is an Integral Institution since: • It receives the complaint • It investigates the causes of the violation of rights • It makes public recommendations on the complaint and the complaint with the competent authority. • Seeks conciliation between complainants. • It has the character of promoting the observance of human rights in Mexico and has crime prevention programs.
5. Human rights and vulnerable groups
In Mexico, Human Rights are one of the axes on which the Rule of Law rests, which have been making way with the participation of various political and social forces. In this context, the National Human Rights Commission (CNDH) plays a determining role, because they are precisely in charge of protecting those rights.17
The CNDH defines Human Rights as the set of prerogatives inherent in the nature of the person, whose effective realization is essential for the integral development of the individual who lives in a legally organized society. These rights, established in the Constitution and in the laws, must be recognized and guaranteed by the State.18
The recognition of cultural diversity as an inherent trait of humanity constitutes a powerful argument that has conditioned the scope of Human Rights. Indeed, since the 1990s, the debate on the international protection of Human Rights and the recognition of national peculiarities has increased. The criticism of universalism and the breakdown of consensus has been evident within the United Nations, which agreed in the Vienna Declaration that:
The international community must treat Human Rights globally and fairly and equitably, on an equal footing and giving everyone the same weight. The importance of national and regional particularities must be taken into account, as well as the diverse historical, cultural and religious heritage, but States have the duty, whatever their political, economic and cultural systems, to promote and protect all Rights. Human and fundamental freedoms (World Conference on Human Rights, Vienna, June 14-25, 1993).
The fight for the defense and promotion of Human Rights focuses preferentially on vulnerable people and groups.
The concept of vulnerability is applied to those sectors or groups of the population that, due to their age, sex, marital status and ethnic origin, are in a risky condition that prevents them from entering development and accessing better welfare conditions.20
During the last decade, attention to vulnerable groups occupies an increasing space in the legislative agendas of public policies, with special attention to the processes of social vulnerability of families, groups and individuals. Mexico participates in the universal objective of spreading and protecting the full enjoyment of human rights. For this reason, it has promoted the creation of organisms that are in charge of watching over them, both in the federal order and in the states of the Republic.
That is why the National Development Plan (PND 2013-2018) includes among its various objectives and strategies one that is aimed at prioritizing the care of vulnerable groups to prevent the violation of their human rights. Ensuring respect for human rights is a task that not only involves restitution in the enjoyment of such rights, but developing schemes through which it is possible to prevent their violation.21
HUMAN RIGHTS IN MEXICO PRO HOMINE PRINCIPLE The definition of the PRO HOMINE principle is defined as follows: “it implies that legal interpretation must always seek the greatest benefit for man, that is, that the broadest standard or interpretation must be used extensive when it comes to protected rights and, on the contrary, to the norm or the most restricted interpretation, when it comes to establishing limits to their exercise »Principle pro homine.
In this new reform of the first article of our political constitution, which is a transcendent change in the field of human rights, since it seeks to give priority to the pro homine principle which is in favor of the person, that is, in the interpretation in In the matter of human rights, the one that benefits the person the most, be it the case of the constitution or of international treaties to which Mexico is a party, will be respected in a supreme order, this gives a more extensive protection. It should also be noted that the first article includes a clause for the integration of human rights, and that any human right that is not contained in the political constitution will be considered as included, that is, if the protection of a person is not expressed in the constitution. human right and in a treaty if,it will be interpreted in accordance with the international treaty. Hence the importance of creating agencies that are responsible for the protection of human rights, in Mexico there is the National Commission on Human Rights which must guarantee compliance and respect for them, to any vulnerable group. It is one of the largest changes the country has experienced in the field of human rights, but we must continue working to achieve greater protection and argue the controversies that may arise at the international level, always seeking equity and protection of the pro-person principle.to any vulnerable group. It is one of the largest changes the country has experienced in the field of human rights, but we must continue working to achieve greater protection and argue the controversies that may arise at the international level, always seeking equity and protection of the pro-person principle.to any vulnerable group. It is one of the largest changes the country has experienced in the field of human rights, but we must continue working to achieve greater protection and argue the controversies that may arise at the international level, always seeking equity and protection of the pro-person principle.
6. Amparo as a mechanism for the protection of human rights and not only of individual guarantees
The concept of "Amparo", according to Fix-Zamudio, must be associated with the protection of human rights, since this is the Hispanic origin of the word and for this purpose it was created not only in the Yucatecan Constitution of 1841, but from the injunction of protection provided for by the Laws of the Indies, which, according to Jesús Ángel Arroyo Moreno was raised before the Viceroys or Captains General, to protect both the possession of property and personal rights.
However, when considering the possibility of promoting an amparo trial for violation of social, economic, cultural or political rights provided for in the Mexican Constitution, such as the right to decent and decent housing, the right to food, the right to health, the right to vote and be voted, for example, several objections arise that oppose this idea:
- Firstly, it is considered that social, economic and cultural rights are not justiciable, since they are merely programmatic provisions of the State. Secondly, the wording of section I of articles 103 of the Constitution and 1 of the Law stands out as a procedural impediment. of Amparo, according to which, "The amparo proceeding proceeds only for violation of individual guarantees." In this way, if one starts from the assumption that social, economic and cultural rights are not individual guarantees, the amparo proceeding does not proceed. in view of the violation of such fundamental rights. On the other hand, it is considered that allowing the amparo trial to serve as a means of coercing the State to comply with the social rights enshrined in the Constitution, would be to cause a collapse of the public treasury,since it would be extremely costly to meet the requirements derived from this type of rights. Special mention deserves the express provision of section VII of the amparo law, regulating articles 103 and 107 of the Mexican Constitution, according to which this judgment it is inadmissible against the resolutions or declarations of the organisms and authorities in electoral matters, which limits in an extreme degree the protection of human rights of a political nature through the Mexican protection.according to which this judgment is inadmissible against the resolutions or declarations of the organisms and authorities on electoral matters, which limits to an extreme degree the protection of human rights of a political nature through the Mexican amparo.according to which this judgment is inadmissible against the resolutions or declarations of the organisms and authorities on electoral matters, which limits to an extreme degree the protection of human rights of a political nature through the Mexican amparo.
In this way, I will try to clear each of these objections that are formulated to the possibility of claiming, through an amparo trial, respect for social, economic, cultural and political rights.
7. Scope of section I of article 103 of the political constitution of the United Mexican States. (previous legislation before the constitutional reform of June 2011 and its regulatory law before April 2, 2013)
As stated in the upper lines, section I of article 103 of the Federal Constitution and section I of article 1 of the Amparo Law, establish that the amparo lawsuit is appropriate for violation of INDIVIDUAL GUARANTEES.
Based on this assumption, it seems that this constitutional judgment is not suitable to demand respect for the social, economic and cultural rights established by the Federal Constitution.
This is so because, apparently, such social rights are not Individual Guarantees.
However, it would be convenient to ask ourselves what we should understand by individual guarantees, or what are individual guarantees, or where they are.
At first glance, the answer seems simple: "Individual guarantees" are contained in the first chapter of the Political Constitution of the United Mexican States, made up of 29 articles.
Such an answer is not exact, since in the first chapter of the Federal Constitution there are not all the fundamental rights that we know as “individual guarantees”, nor do all the articles that make up the first chapter of the Magna Carta contain fundamental rights, in other words form, neither are all who are nor are all who are.
In effect, if we limited ourselves to considering that “individual guarantees” are the rights provided for in the first chapter of the Mexican Constitution, we could not, for example, claim violations of labor rights provided for by article 123 of the law. fundamental; neither could we claim through the amparo trial for the protection of the Union's justice against the collection of taxes, alleging violations of the principles of justice and equity enshrined in article 31 of the Federal Constitution.
In the same way, not all the articles contained in the first chapter of the Mexican Constitution are properly the minimum rights of the individual, traditionally known as “individual guarantees”. Thus, for example, we have Article 27, which establishes a true social right, by regulating the land tenure system, where the private property regime coexists with the community and ejido system.
Such confusion is caused by the unfortunate name given to the first chapter of our fundamental law, under the heading "INDIVIDUAL GUARANTEES".
To clarify this confusion it is necessary to establish the difference between Human Right, Fundamental Right and Individual Guarantee.
In this regard, Miguel Carbonell considers that the concept of "guarantee" is not equivalent to that of a right. This is so, because the term guarantee implies a mechanism for the assurance or protection of a right.
Thus, for example, in civil law, the guarantee serves to ensure compliance with an obligation; In procedural law, precautionary measures are guarantees to execute an eventual favorable judgment.
From the foregoing it follows that the right enshrined in the law may have instruments of guarantee.
In that order of ideas, using a simile of civil law, the content of an obligation (for example, deliver the price in the sale) would not be the same as the mechanism or guarantee that the parties agree to make that right effective.
Thus, as an example, we will say that the first article of the Constitution is not the "guarantee of equality", but the fundamental right of equality before the law; likewise, article 14 is not the “guarantee of hearing”, but the fundamental right of due process.
For this reason, the rights enshrined in the Constitution have various types of mechanisms designed to ensure respect for those rights. Such is the case of the amparo trial that serves to force the authority to respect the right of hearing, freedom, property, possession, etc.
However, the difference between human rights and fundamental rights is that the latter are provided for in the Constitutions and in the International Treaties; They first appear in France (droits fundamentaux) in the late eighteenth century within the movement that culminates in the 1789 Declaration of the Rights of Man and of the Citizen.
On the other hand, human rights comprise a broader category and, in synthesis, are inherent faculties of the human condition, which, because they are obvious, are generally not included in the constitutional texts.
In this way, we must consider that the powers enshrined in our constitution in favor of the governed are not guarantees, but rather fundamental rights.
So if the rights enshrined in the first chapter are not "individual guarantees" but fundamental rights and if, in addition, such rights are scattered throughout the constitutional text, we must ask ourselves: What does fraction I of Article 103 of the Constitution refer to when it establishes the provenance of the amparo trial for violation of "individual guarantees"?
If we consider that every fundamental right must be included in "a provision of fundamental right" and that a precept of this type is precisely the statement provided by the constitution or in international treaties that "typify" those rights, we conclude that by "individual guarantees "We must understand all fundamental rights incorporated as such in the constitutional text, or even in the international treaties that the Mexican state concludes in the terms indicated in article 133 of the Mexican Constitution.
Now, not only a doctrinal reflection leads us to such a conclusion, but the Supreme Court of Justice of the Nation has ruled in the sense of considering that the amparo trial proceeds for violation of the fundamental rights provided for in the Constitution.
Thus, the current wording of section I of article 103 of the Mexican constitution, (which coincides with section I of article 1 of the Amparo Law,) should not be an impediment to raising the amparo judgment for violation of any fundamental right, whether of a civil and political nature, or of a social nature, such as the expected social, economic and cultural rights.
Finally, it should be remembered that the Mexican State has signed more than fifty International Treaties on human rights and their entry into force requires the parties, according to Carmona Tinoco, a).- a generic duty to respect, protect, satisfy and guarantee the rights in them protected; b).- The obligation to adapt the domestic law to the purposes of the treaty; c).- The obligation to modify the administrative guidelines, so that they are congruent with the agreement; and d).- the need to establish public policies that allow the implementation of the treaty.
If we also take into consideration that Article 8 of the Universal Declaration of Human Rights, Article XVIII of the American Declaration of the Rights and Duties of Man, Article 2, Section 3 of the International Covenant on Civil and Political Rights of the The United Nations and Article 25 of the American Convention on Human Rights establish as the right of every person to occur before jurisdictional bodies in defense of their rights, and the states must provide an agile and effective procedure to protect them for the violation of the fundamental rights enshrined in the Constitution, we must necessarily conclude that the Mexican state must have a procedure that protects people not only for violation of "individual guarantees",but also of the violation of human rights provided for in the treaties concluded at the international concert.
For this reason, I consider that through Article 133 of the Constitution, the violation of any of the human rights provided for in the treaties on this matter concluded by the Mexican State can be claimed through the amparo.
8. Myths about social, economic and cultural rights
Now, against the judicial enforceability of social, economic and cultural rights, a series of arguments or myths have been constructed, which I consider do not subsist after a simple reflection:
to). MYTH ONE: SOCIAL, ECONOMIC AND CULTURAL RIGHTS ARE MORE PROGRAMMATIC RULES TENDERING TO DIRECT PUBLIC POLICIES AND THEREFORE, THEY DO NOT INCLUDE RIGHTS THAT INDIVIDUALS MAY EXERCISE IN FRONT OF THE STATE.
In this regard, it should be clarified that any concept of right implies the idea of enforceability, that is, we cannot conceive a right without someone being obliged to observe it.
In this order of ideas, we must understand that although the Mexican Constitution is true, it is a political document and therefore several of its provisions have an unclear wording, inspired more by political than legal factors, it is also true that it is the "Law of laws", a set of legal provisions that must be applied, generally corresponding to the judiciary to specify its scope.
Thus, all the fundamental rights established in the Mexican Constitution contain a right in favor of the governed, which necessarily translates into an obligation for the public power.
b).- MYTH TWO: CIVIL AND POLITICAL RIGHTS MAY BE PERFECTLY DEMANDABLE TO THE STATE, BECAUSE THEY ONLY INVOLVE OBLIGATIONS NOT TO DO, WHILE SOCIAL, ECONOMIC AND CULTURAL RIGHTS, INVOLVE OBLIGATIONS TO DO.
It is a widespread idea that the state fulfills the right to liberty by not depriving anyone of it; complies with the right to property by not preventing its enjoyment; that it complies with freedom of expression by not preventing people from expressing themselves, etc.; On the other hand, speaking of social, economic and cultural rights, to make the right to housing effective the state would have to provide houses to all its inhabitants; to fulfill the right to food, it would have to feed everyone, etc.
Such conception only responds to a nineteenth-century vision of the Liberal State, when at the triumph of the French revolution, the main concern was to claim the individual for his most basic rights, such as the right to life, the right to liberty and the right to the equality of men before the law, without at that time there being any concern for protecting social rights, since these concerns began to emerge until the mid-nineteenth century and were materialized throughout the twentieth century.
In reality, it is true that the state complies with civil and political rights by refraining from preventing their enjoyment; however, it must also carry out a series of tasks that aim to respect these rights.
Thus, for example, to respect the right to security, you must establish a whole system of public security, creating police forces, establishing laws that provide a framework of security, building and maintaining prisons.
In order to respect the right to property, an entire registry and cadastral system must be established to identify who is the owner of each property.
To allow the exercise of the right to justice, the state must maintain an entire apparatus for the procurement and administration of justice.
Thus, respect for civil and political rights not only implies a negative or abstentionist attitude from the state, but also implies an active, creative, participatory position of the public power, which of course occupies a very important part of the state budget.
Now, respect for social, economic and cultural rights, as established by Courtis and Abramovich, not only implies providing the population with satisfactory materials, but also, the state must refrain from carrying out policies that prevent or hinder enjoyment. of social rights and, on the contrary, carry out government actions (legislative and administrative) that favor the enjoyment of these types of rights.
Thus, the state must refrain from issuing a law that causes deterioration of the ecology, that hinders the right to education; that affects homes, that damages food production processes, etc.
Therefore, it is false to pretend that respect for civil and political rights only implies an abstention by the state, while respect for social rights implies an act of public power.
Finally, it should be understood that even when dealing with positive behaviors of the state to respect social rights, these could be of an administrative nature, of planning, that favor respect for this type of rights.
In this last sense, we would be talking about rules of a programmatic nature that tend to govern public policies.
c).- THIRD MYTH: THE ECONOMIC CONDITIONER.
Without as much legal weight as the previous myths, but with more pragmatic content, it has been considered that it is materially impossible for the State to comply with all the social rights embodied in the Constitution, and even more so in those provided for in international treaties, since it would be impossible to budget for everyone to live in, to feed everyone, to give school to everyone, etc.
Such an argument starts from a biased vision of reality.
Indeed, it should first be clarified that respect for the civil and political rights of citizens, far from what is thought, is extremely expensive.
To respect the right to vote, the political right par excellence, it is necessary to establish an entire electoral system, with citizen bodies to control electoral processes, political parties financed with public resources that are extremely expensive.
To provide security, it is required to mount and support a judicial apparatus that is also expensive; Needless to say, the resources that are allocated to the field of public security, which are increasing, especially in light of the results it offers.
In the same way, to protect property and possession rights, the state allocates a very important amount of its resources to establish the registry and cadastral systems; In the event that these rights are violated, it has significant resources to implement an apparatus for the procurement and administration of justice.
For all these reasons, respect for civil and political rights, AS WELL AS RESPECT FOR SOCIAL RIGHTS, supposes an outlay of important resources.
Thus, what justifies sacrificing respect for social rights, to allow budgetary respect for civil and political rights?
The answer is clear: Nothing, simply inertia in the vision of fundamental rights, without social or legal support, have led us to such a determination.
To maintain the opposite would be as much as accepting that a father stops giving food to his children simply because it is very expensive.
Finally, it has already been explained that respect for social rights does not necessarily imply the expenditure of resources to provide satisfaction to the population.
In that sense, to bring to court the claim of respect for social rights, requires an intelligent and proactive attitude of the applicant lawyer and the judge, where it does not necessarily order the state to allocate a resource to respect the violated right, but to carry out government tasks tending to respect these social rights.
There are those who see in this possibility the risk that the judiciary will become the rector of public policies; Personally, that possibility does not bother me, because taking stock of the results, I consider that it is a lesser evil than the system that currently prevails on the issue of respect for social rights.
9. The impossibility of protecting the political-electoral rights through the protection
Despite the obligation of the Mexican state to protect, among others, the political rights of people, to establish public policies that allow their enjoyment, to adjust the legal framework so that it is effective and to modify the legislation establishing jurisdictional mechanisms that allow their full enjoyment, duties that every state that signs a human rights pact acquires, as stated in the preceding lines, the Mexican legal framework prevents people, individually, from going to court in defense of their political rights against of electoral laws.
In effect, attacks on people's political-electoral rights cannot be fought through the jurisdictional mechanisms established by the Mexican jurisdictional system.
This is so, because neither the amparo trial, nor the action of unconstitutionality, nor the trial of protection of political rights can serve to attack unconstitutional electoral laws.
As regards the first of these instruments, section VII of article 73 of the amparo law expressly prohibits the proceeding of this lawsuit against the resolutions or declarations of the organisms and authorities in electoral matters.
This limitation has been justified with the idea that if the federal judiciary and, more properly, the Supreme Court of Justice of the Nation, were devoted to hearing electoral matters, via an amparo trial, the function could be "politicized" judicial.
Such an idea, understandable at first, cannot subsist for two reasons:
First, the Supreme Court of Justice of the Nation, whether it wants to or not, is obliged to make decisions that necessarily transcend the political field, such as deciding a constitutional controversy between the legislative and the executive on the issue of budget; resolve an unconstitutionality action against a general electoral law or propose to the Senate the short list of candidates for Magistrates of the Electoral Court of the Federal Judicial Branch.
Such activities, just consult the media, have an enormous political impact and significance.
On the other hand, preventing by law the Supreme Court of Justice of the Nation from acting in political matters, seems to be an archaic idea that must be overcome.
Indeed, as José Woldenberg points out, until 1986 there was no court that knew of challenges in electoral matters, because before that date, this type of nonconformities was aired by an appeal promoted by the political parties before the electoral body itself (the Federal Electoral Commission, dependent on the Ministry of the Interior), so the resource, in practice, was materially useless.
It should be recognized that since 1977 the Supreme Court of Justice of the Nation has been given the possibility of hearing, through the appeal, claims of nonconformities in electoral matters, only that its resolutions only had the category of "observations" addressed to schools Electoral, who were in charge of qualifying the elections.
In 1986, the Supreme Court of Justice of the Nation was removed from all competence in electoral matters and a court of electoral contention was created, although its decisions were still subject to those taken by the chamber of deputies and senators, since they were them, erected in electoral colleges, those in charge of self-qualifying the elections of federal Deputies, Senators and President of the Republic.
The 1989-1990 political reform, which creates the Federal Electoral Institute (IFE), also creates the Federal Electoral Tribunal (TRIFE); however, the electoral colleges were maintained, so that TRIFE did not have the last word in electoral conflicts.
In 1993 the electoral colleges were eliminated and TRIFE had the last word in electoral conflicts, except for the qualification of the election of the President of the Republic, which continued to be carried out by the Chamber of Deputies.
Finally, in 1996, the Electoral Tribunal of the Federal Judicial Branch was created, which acquires the final decision of all electoral conflicts, including the qualification of the presidential election, exercising that function for the first time in the federal elections of the year. 2000.
In this way, although it seemed that electoral justice could be an effective means to combat violations of people's political rights, by decision of the Supreme Court of Justice of the Nation, the Electoral Court of the Federal Judicial Branch was prohibited from evaluating the constitutionality of laws in electoral matters.
Of that, like the amparo, the constitutional review trial in electoral matters, was forbidden to people as a means to attack the unconstitutionality of electoral laws.
Finally, the unconstitutionality action provided for by section II of article 105 of the Political Constitution of the United Mexican States, which aims to raise before the Supreme Court of Justice of the Nation the possible contradiction between a general rule and the constitution, seems to be the only way to attack the unconstitutionality of a law in electoral matters.
However, when reviewing the assumptions of origin we see that this action is prohibited for individuals, individually, since it can only be exercised by the third part of the legislature that enacted it, by the Attorney General of the Republic or by the political party leaders.
In this way, neither the amparo trial, nor the constitutional review trial in electoral matters nor the unconstitutionality action can be effective in fighting, by individuals, the unconstitutionality of a general rule that violates their political-electoral rights.
10. Conclusion
Based on the aforementioned reflections, it must be concluded that the amparo proceeds not only for violation of "individual guarantees", but also for violation of human rights, including, of course, social, economic and cultural rights, alleging that their ignorance violates article 133 of the Federal Constitution, so that the act of authority that did not know these rights, would lack the proper foundation that Article 16 of the Mexican Constitution requires; It could also, if the violated human right contains procedural rules, allege violation of the due process guarantee established in Article 14 of the Political Constitution of the United Mexican States.
It is only necessary to satisfy procedural requirements of the amparo, such as identifying the responsible authority and the existence of personal and direct grievance.
Thus, for example, Carbonell refers to a record in which the Plenary of the Supreme Court of Justice, enforceable on October 25, 1999, decided to grant the protection and protection of the Union Justice to a complainant who claimed violations of the right to health provided for in Article 4 of the Constitution.
In this case, the complainant pointed to the Ministry of Health as the responsible authority, claiming as a violation of the fundamental right to health the lack of inclusion in the basic table and catalog of medicines of the Mexican Institute of Social Security, the drugs necessary to treat the disease. HIV.
This means that for the highest Mexican court, social, economic and cultural rights are justiciable.
Regarding the violation of political-electoral rights, given that their protection is expressly prohibited by section VII of article 73 of the Amparo Law in force until April 2, two thousand and thirteen, it is possible to go to the international mechanisms for the protection of human rights, since there is no effective means for their protection at the national level, however, today with the constitutional reform of June 2011, and its regulatory law on articles 103 and 107 of the constitutional “Law of Amparo with entry into force on April 3, two thousand and thirteen, today these cases, the Mexican State opted to empower federal and local judges, as secretaries of states and individuals with the character of responsible authority, to safeguard guardianship of the human rights of the human being,disapplying the general law or legal devices with the exception that it has better benefits than our own law, to apply a diffuse right, conventionality and constitutional block in favor of the people who are affected in a judicial or administrative instance ”, generating a defense mechanism with greater amplitudes for the benefit of all human beings, through the JUDGMENT OF AMPARO.
As far as Mexico before the constitutional reform and as its regulatory law was limited in protecting the protection of human rights, since they contemplated simple individual guarantees, today the paradigm has revolutionized and thanks to the accumulation of considerations of international organizations made to Mexico, today it is on par with the capitalist countries, where they really guarantee the protection of HUMAN RIGHTS, in a supranational environment.
Conventional system that we will be applying over time in very short terms and that the Supreme Court of Justice will come weighing the protection of human rights to the entire Mexican republican, guaranteeing the principles and foundations for due process.
Today, the Mexican Constitution as of June 2011 and the Amparo Law that came into force on April 3, two thousand and thirteen, includes as an object of protection of the amparo trial the violation of any human right protected by any instrument International celebrated by the Mexican state or by the local constitution, since it seeks the greatest benefit of the human being by guaranteeing the human rights recognized by these international organizations, provided that Mexico is part, since it generates a greater broad defense, which obliges the state a universal protection of human rights.
As well as a procedure that fully guarantees human rights, through the amparo trial as a means of constitutional control and human rights. Well, it did not leave out the human rights of the disabled, certain rights of children, women, and vulnerable groups, as well as the power to file an amparo trial by having a legitimate or legal interest, for example.
However, taking into account the principle of exhaustion of the internal defense means that governs the international human rights protection system, as argued by Carmona Tinoco, it would be convenient that at least, the instruments that contain a complaint mechanism.
So if there is an effective system of protection of human rights, which will be appreciated as it progresses over time, this is the TRIAL OF AMPARO. For its sentence is binding and obliges the Mexican state, within its three judicial, legislative and executive powers, to apply for the benefit of the human being the principles and human rights that they have the right not to be violated before these entities of power.
As well as other instances such as the National Human Rights Commission, which issues considerations to the Mexican state for violating human rights, which are not of a coercive nature, well, but that today the Mexican state is obliged to safeguard, unlike the trial. in defense that its resolution is of a coercive nature, benefiting the human being with the broadest protection of human rights.
11. As a suggestion
Finally, the project sponsored by the Supreme Court of Justice of the Nation to reform the amparo trial and in its first article, the origin of the amparo is included not only against the violation of "individual guarantees", but also for the violation of human rights recognized in the constitutional state and in the international treaties to which the Mexican State is a party, as well as the guarantees for their protection, the exercise of which may not be restricted or suspended, except in the cases and under the conditions that the constitution itself establishes, it was a revolution for the good he generates legal certainty in the judicial and non-jurisdictional processes, for the human being who stood in this specific case.
But even with the regulatory reform of articles 103 and 107 of the constitution, referring to the Amparo Law, which contemplates and regularizes the constitutional reform, for the application of the conventionality mechanism, constitutional block, the Mexican state made legal progress, however, Too late, since in other Hispanic legislations for more than forty years its constitutional legislations already adopted the application of human rights, even when the State did not recognize it in its legislations or procedural provisions, since in the Mexican state, in matters of Electoral and fiscal human rights remained very ambiguous, since today in the matter of electoral matters there is no protection of the human rights implemented in the amparo trial,means of constitutional control that the Supreme Court of Justice of the Nation should know, since as well known there is an autonomous Federal Court of Electoral Matters, containing its due process, however there is no such constitutional power for the court to proceed with the judgment of protection.
As regards the tax field, the new law of protection in force, as regards the declaration of unconstitutionality of a law, does not prosper for tax matters, whose procedure carried out by the Supreme Court of Justice of the Nation does not exonerate The legislators, having not expanded for fiscal budgets, considered that it should have considered this premise, even when the consequences of the state in tax matters were compensated at very high costs.
12. Bibliography
- ABRAMOVICH, Víctor and COURTIS, Christian, "The structure of Social Rights and the problem of its enforceability" Trotta, Madrid, 2002.ARROYO MORENO, Jesús Ángel. The origin of the amparo trial. Electronic edition of the Institute of Legal Research of the National Autonomous University of Mexico, at the address http://www.bibliojuridica.org/libros/5/2289/6.pdf.CARBONELL, Miguel, "The Fundamental Rights" National Autonomous University of Mexico and the National Commission of Human Rights. Mexico, 2004.FIX-ZAMUDIO, Héctor. Jurisdictional Guarantees for the protection of human rights in Ibero-America. Electronic edition published by the Legal Research Institute of the National Autonomous University of Mexico at the address http://www.juridicas.unam.mx/inst/direc/public.htm?p=zamudio.POLITICAL CONSTITUTION OF THE UNITED MEXICAN STATES 2013. Editorial ALFARO.CARMONA TINOCO, Jorge Ulises. Some comments on legal research and higher education in human rights in Mexico. Consulted on the page www.pdhumanos.org/libreria/libro8/18_jorge_carmona.pdf.__________________________. The judicial application of international human rights treaties. Electronic edition of the Institute of Legal Research of the National Autonomous University of Mexico, available at the address www.juridicas.unam.mx/inst/direc/public.htm?p=jorgec.__________________________. Challenges and proposals for state harmonization in the field of human rights. Paper presented at the seminar The harmonization of international human rights treaties in Mexico, held in Guadalajara, Jalisco,April 14 and 15, 2005, consulate on the page http://www.pdhumanos.org/libreria/libro4/17.pdf.CASTAÑEDA OTSU, Susana Ynés. The principle of interpretation in accordance with human rights treaties and its importance in the defense of the rights enshrined in the Constitution. Electronic edition consulted at the address www.justiciaviva.org.pe/anticorrupcion/cv_magistrados/vocales/susana_castaneda.doc.LANDA ARROYO, César. The application of international treaties in domestic law and the Inter-American Court of Human Rights. Electronic edition accessed at www.coladic-rd.org/pdf/Articulos/CD_Trat_Intl_TribConst_peru.pdfLATAPÍ RENNER, Alejandra. The myths of the electoral process, published on the page http://www.etcetera.com.mx/pag75ne68.asp corresponding to the November 12, 2006 edition of the magazine “etcéter @.” LAW OF AMPARO. Electronic edition published by the Chamber of Deputies at the address http://www.diputados.gob.mx/LeyesBiblio/doc/20.doc.ORTIZ AHLF, Loretta. The integration of international norms in the state systems of the countries of Ibero-America. Electronic edition consulted at the address http://biblioteca.universia.net/html_bura/ficha/params/id/1085127.html SUPREME COURT OF JUSTICE OF THE NATION. DVD IUS 2004.WOLDENBERG KARAKOWSKY, José. Minihistory of Electoral Justice. Electronic Edition of the Reforma Newspaper, corresponding to July 27, 2006, available at the address http://www.reforma.com/editoriales/nacionales/671293/default.shtm.REFERENCIAS Koffi Annan.BIBLIOGRAPHY Political Constitution of the United Mexican StatesLEW OF AMPARO 2010. EDITORIAL ALFARO.LEAD OF AMPARO 2013. EDITORIAL ALFARO.Systems of Jurisdictional and Non-Jurisdictional Protection of Human Rights in Mexico d) 16 See thesis S3ELJ 15/2000, published under the heading “NATIONAL POLITICAL PARTIES. TUITIVE ACTIONS OF DIFFUSED INTEREST MAY BE DEDUCTED AGAINST THE PREPARATION ACTS OF THE ELECTIONS ”in the Official Compilation of Jurisprudence and Relevant Theses 1997-2002, volume of jurisprudence, pp. 155-157.TUITIVE ACTIONS OF DIFFUSED INTEREST MAY BE DEDUCTED AGAINST THE PREPARATION ACTS OF THE ELECTIONS ”in the Official Compilation of Jurisprudence and Relevant Theses 1997-2002, volume of jurisprudence, pp. 155-157.THEY MAY DEDUCT TUITIVE ACTIONS OF DIFFUSED INTEREST AGAINST THE EVENTS OF PREPARING THE ELECTIONS ”in the Official Compilation of Jurisprudence and Relevant Theses 1997-2002, volume of jurisprudence, pp. 155-157.
