From the general point of view, identity can be reached by asking questions such as; who I am? That I am? Where do I come from? And where do I go ?, which depends on factors such as self-knowledge, self-esteem and self-efficacy.
Well, if we consider identity as knowing ourselves better in an intrinsic way as a subject, then when the external professional activity intervenes, what happens to the internal knowledge of the subject? This approach arises from the existence of subjects legally called judges, magistrates, etc. People who have a defined and known identity, but at the same time, being part of a legal and constitutional system, they cannot necessarily apply that identity, but rather apply what by law and by right should be applied.
Here arises the dilemma of what identity I apply, since as a free and thinking subject I can apply a judgment but linked to my personal identity based on feelings, what I want, what I am, etc. But also in the professional field I must apply another type of identity, one that gives me the same law and constitution based on laws, the common good, equality, justice, etc.
This type of situation should not be considered as a loss or lack of identity of the subject, but as a great capacity of the human being to be able to synchronously handle both identities, which should not affect the personal identity as a subject, nor affect identity as a representative of justice and the constitution.
To all this we can mention an example in which the judge faces a situation where his personal identity and his identity as a representative of justice are in conflict. By intervening in the specific case with his role as judge and in which he has personal interests, either because one of the parties is a family member, friend, enemy or has a relationship.
For this reason, said judge puts at risk the due process of judging and dictating the law since obviously the balance will subjectively tip the part of his preference, thus violating the guarantees of the other party.
Such a situation, although it sounds very crude, was very common in previous times, for which the legislative body undertook the task of creating a control mechanism to avoid such abuses. Mechanism that in my opinion I can divide into points established in the federal code of civil procedures; the first in its article 39 that talks about impediments and to the letter says:
Article 39.- Once the competence of a judge, magistrate or minister has been established, in accordance with the provisions of the preceding chapter, he will know the business in which he has established himself, if he is not included in the following cases of impediment:
I.- have a direct or indirect interest in the business;
II.- have said interest his spouse, his blood relatives in a straight line, without limitation of degree, the collaterals within the fourth and the related within the second;
III.- have, the official in question, his spouse or his children, intimate relationship with any of the interested parties, born of some religious or civil act, sanctioned or respected by custom;
IV.- to be a relative, by consanguinity or affinity, of the lawyer or attorney of any of the parties, in the same degrees referred to in section ii;
V.- be, he, his spouse or any of the children, heir, legatee, donor, donee, partner, creditor, debtor, guarantor, guarantor, lessee, landlord, principal, dependent or habitual commensal of any of the parties, or current administrator of your assets;
VI.- having made promises or threats, or otherwise manifested their hatred or affection for any of the litigants;
VII.- having attended parties given or paid for by one of the litigants especially for him, after starting the business, or having a lot of familiarity with any of them, or living with him, in his company, in the same house;
VIII.- admit, he, his spouse or one of his children, gifts or services of any of the parties, after starting the business;
IX.- having been a lawyer or solicitor, expert or witness, in the business in question;
X.- having, for any external reason, being a judicial official, his opinion, before the ruling;
Xi.- having known as a judge, magistrate or minister, arbitrator or advisor; resolving any point that affects the merits of the matter, in the same instance or in some other;
XII.- to follow, he or any of the persons, that is discussed in section ii, against any of the parties, a civil process, as an actor or defendant, or a criminal case, as an accuser, plaintiff or complainant;
XIII.- having been, one of the parties or their lawyers or employers, a complainant, plaintiff or accuser of the official in question, or of any of the persons mentioned in section ii;
XIV.- being, he or any of the persons referred to in section ii, contrary to any of the parties, in administrative business that affects their rights;
XV.- to follow, he or any of the persons mentioned in section ii, any civil or criminal process in which he or she is a judge, agent of the public prosecutor, arbitrator or arbitrator, any of the litigants;
XVI.- be the tutor or curator of any of the interested parties; and
XVII.- be in a situation that may affect their impartiality in an analogous way or more serious than those mentioned.
The second step that talks about the excuse that the judge must make when being in a situation of disability, established in articles 43 to 46 of said code and the letter says:
Article 43.- The ministers, magistrates, judges, secretaries and executing ministers have the duty to excuse themselves from knowing the businesses in which any of the impediments indicated in article 39 occur, specifically stating what the impediment consists of.
Article 44.- If the impediment is included in any of the first sixteen fractions of article 39, the resolution in which the judge, magistrate or minister declares himself incapacitated, will be irrevocable, and, instead, the business will know who should replace the incapacitated person. in accordance with the organic law of the judicial power of the federation.
In the cases of the same fractions, if the disabled person were the executing secretary or minister, he will propose his excuse to the court that hears the business, so that it may decide who should replace him.
Article 45.- If the impediment is based on section xvii of article 39, the resolution will only be irrevocable if the parties agree to it; otherwise, the opposition will resolve, who must know of the excuse, in accordance with the organic law of the judicial power of the federation, accompanying, for this purpose, a report on the particular, the toilet.
The court will decide with the report of the person who was declared disabled and with the opposition document, and will send, where appropriate, the files, to whom it should know, according to the meaning of its resolution.
If the excuse is of a magistrate of the supreme court of justice, it will proceed of course, to substitute him in the knowledge of the business, in the terms of the mentioned organic law, without admitting opposition from the parties.
If the excuse is from a secretary or executing minister, he will propose it to the court of knowledge, which with the hearing of the parties, will decide whether it is accepted or not, designating, if so, who should replace the disabled.
Article 46.- Meanwhile an excuse is resolved, the procedure will be suspended.
And the third step that deals with the challenge that refers in colloquial terms to the accusation made by the party who feels aggrieved and in a situation of imbalance against him due to the fact that there are impeding circumstances thus the judge, and he did not pre-apologize in the appropriate procedural term. Such a step is provided for in articles 47 to 53 and the letter says:
Article 47.- The parties may challenge the officials referred to in this chapter, when they are included in any of the impediment cases.
The challenge will be filed before the court that hears the business.
Article 48.- A challenge may be filed at any stage of the trial, even before the final hearing begins, unless, after it has started, the staff has changed.
In the enforcement procedures, no challenge will be given before the seizure or seizure or detachment is made, as the case may be. Neither will the challenge be given when it is filed at the time a diligence is being carried out, but until it ends.
Article 49.- Once the replacement has been filed, the procedure is suspended until it is resolved, so that the business can continue before whoever should continue to know about it.
Article 50.- Once the challenge is filed, the party may not raise it at any time, or change the cause, unless it is supervening.
Article 51.- The ministers, magistrates and judges who hear of a challenge, are irrefutable for this sole purpose.
Article 52.- Any challenge filed in violation of any of the previous provisions will be rejected outright.
Article 53.- Once a challenge is entered, if it is a secretary or an executing minister, the court that hears the business will resolve it, after the report of the challenged, by the incidental procedure. The resolution will determine who should continue to intervene.
If the challenged is a minister, magistrate or judge, he / she will send the matter to whoever should hear about the challenge, accompanied by a report; the lack of this establishes the presumption of being true the cause of the challenge.
If the cause must be authentically recorded, it will not be admitted if it is not proven in that way.
Received the business in the court that must decide the challenge, it will be resolved by the incidental procedure.
In any case, the resolution that decides a challenge is irrevocable.
This mechanism is thus called a padlock that aims to prevent common or federal judges from participating in cases that have a marked interest.
But sadly and due to the personal identity of the subject who applies justice, which is composed of their personal and subjective relationships which greatly influence when analyzing a specific case.
Bibliography
1. Federal Code of Civil Procedures.
2. New millennium universal encyclopedic dictionary. Editorial team theme. Spain. 2002.
3. Martínez Morales Rafael. General Legal Dictionary volume 3. edit. IURE. Mexico. 2007.
