Using Constitutional Controversies to Protect Human Rights

Roberto Niembro

Instituto Tecnológico Autónomo de México (ITAM)

One of the focal points of the IACL research group ‘New Frontiers of Federalism’ is the role of local governments as new key players in the management of public services and the protection of rights. This exploration line centers on the analysis of metropolitan cities, as unique socio-economic and political spaces in contemporary times, and strategic places for building new modes of governance that are better placed to balance the economic and social dimensions of society and to fight economic inequalities.

Within this line of investigation, what I intend to examine is how local councils in Mexico could contribute to the protection of human rights by using so-called "constitutional controversies”. In Mexico, we have three different constitutional procedures for judicial review. The Amparo trial is a judicial review procedure that that can be filed by an individual. In contrast therewith, constitutional controversies are review procedures available to local councils, states and federal branches of government, offering them a means to protect their own powers. Finally, there is also abstract review of legislation.

The issue here is that constitutional controversies are not intended to protect human rights. In this regard, the Supreme Court of Mexico has ruled, for example, that if a local council files a lawsuit against a state for a violation of human rights, the "controversy" should be dismissed. The reason for this is that constitutional controversies are designed to protect powers only, not human rights per se.

We have to keep in mind that throughout much of the 20th century, the Mexican Supreme Court was part of the authoritarian rule under the Institutional Revolutionary Party (PRI, from the Spanish) that lasted for 70 years. Under that regime, the Court was reduced to playing a secondary role. Fortunately, this started to change a few years ago when the Supreme Court underwent reforms that strengthened it, and subsequent changes occurred after a change in the presidency of the republic in the year 2000. Thus, it is in this new context that the Court has begun to guarantee fundamental rights.

Indeed, the Supreme Court experienced an important change due to constitutional reform that took place in 1995. At that point, abstract review was established, and the scope of the Court’s review powers over cases involving controversies over competence was broadened. During the first 15 years after the 1995-reforms, the Court’s main areas of concern were conflicts between branches of government and disputes between the Federation, states, and municipalities. The Court’s human rights agenda started to flourish only about 10 years ago, gaining strength with the fundamental rights and Amparo trial reforms of 2011. Since then, human rights cases occupy a large portion of the Supreme Court’s agenda. In this regard, the resolution of human rights cases has allowed the Court to study and apply principles of constitutional interpretation such as the pro-person principle, and principles of universality, indivisibility, interdependence, and progressivity. It has also allowed the Court to use various methodologies to analyze the constitutionality of its restrictions and to implement different mechanisms of control.

On this note, what I have begun to analyze is how this federal mechanism, constitutional controversies, can be used to protect human rights indirectly. This is a particularly attractive way of litigating in relation to economic, social and cultural rights (ESC). That is because of the wide impact of operationalizing these rights  and, in contrast, the narrower scope of focus in an Amparo trial. Ordinarily the understanding is that federalism is a principle concerned with the vertical distribution of power, and thus liberty. It is therefore traditionally understood to impose only negative duties on state entities. My suggestion there, however, is that constitutional controversies can be used to enforce positive obligations, arising out of ESC rights.

Now that the Supreme Court has endeavored more keenly to solve cases involving human rights, we should begin to rethink our use of the procedural mechanisms designed for their protection. Particularly in the case of ESC rights, it is important to note that their lack of protection ensues from the non-exercise of certain competencies by municipalities, states, and the Federation. That is, the lack of provision of public services or the absence of government policies is the result of the State not carrying out the tasks that have been assigned to it. This relationship between the exercise of competencies and the protection of human rights is at the heart of Article 1 of the Mexican Constitution, which prescribes in its third paragraph that:

“Every authority, within the scope of their competence, has the obligation to promote, respect, protect and guarantee human rights in accordance with the principles of universality, interdependence, indivisibility and, progressivity.”

It is, therefore, necessary to consider how the procedural mechanisms that have been traditionally envisioned for the resolution of conflicts between branches of government or between federal and local governments can also be useful for the protect human rights. This is particularly important when one considers the potentially wide-ranging effects of a constitutional controversy being resolved by the Supreme Court.

There is actually a good example of this: the constitutional controversy case from 2015, case 38/2015. In this case, a local council in Oaxaca sued the state of Oaxaca because it did not complete the construction of a hospital. The local council’s arguments were based on the violation of the right to health of the population. Traditionally, this would mean that the constitutional controversy would have to be dismissed. However, the Court used a flexible interpretation and found that the local council had also argued a violation of its powers. The Court concluded that the state of Oaxaca violated the council’s powers because it had not finished building the hospital and ordered the state government to complete it within 18 months. This case is interesting because it portrays a key aspect of the constitutional controversy, that is, that it does not face the problem of the inter partes effect of an Amparo ruling. Because of the prevailing understanding of the inter partes effect that applies in Amparo matters, an order to finish the construction of hospital would not be possible. This is so because it would benefit more persons than just the parties that filed the Amparo. No similar problem arises in a constitutional controversy case, because it is a local council that files the controversy.

In my opinion, this example invites us to think about how a federal mechanism like the constitutional controversy could be used for a different purpose than that it was designed for, such as for the protection of human rights. Particularly because the local council is the closest authority to citizens, and the Supreme Court has a human rights agenda. I am interested, therefore in reflecting on how this mechanism could be used by local citizens. Perhaps, this could be made possible with an amendment of the Constitution that enables a minimum number of citizens to demand that their local council files a constitutional controversy.

Roberto Niembro is professor of constitutional law at Instituto Tecnológico Autónomo de México (ITAM), Mexico.

Suggested citation: Roberto Niembro, “Using Constitutional Controversies to Protect Human Rights” IACL-AIDC Blog (29 October 2019) https://blog-iacl-aidc.org/new-frontiers-of-federalism/2019/10/29/using-constitutional-controversies-to-protect-human-rights