The recent legislative proposal that seeks to limit the power of the Supreme Court of Justice of the Nation (SCJN) to review constitutional reforms is not only an attack on a judicial institution, but a structural threat to the rule of law in Mexico. This initiative, which seeks to eliminate judicial control over reforms promoted by Congress, puts at risk the fundamental principles that sustain our democracy: constitutional supremacy, the separation of powers and the protection of human rights.
The importance of judicial control
In any democratic state, judicial control is the pillar that ensures the balance between the powers of the State. The SCJN, as guardian of the Constitution, is responsible for verifying that any constitutional modification respects the fundamental principles enshrined in our Magna Carta. According to Hans Kelsen's theory, the legal system must be organized in a hierarchy of norms where the Constitution occupies the supreme level. By eliminating or restricting the control of the SCJN, this proposal disarticulates the normative hierarchy and endangers the coherence and stability of the legal system.
Currently, for the SCJN to declare the invalidity of a general norm, including constitutional reforms, a qualified majority of at least eight of the eleven justices is required, according to article 105 of the Constitution. The legislative proposal seeks that, if this number of votes is not reached, the reform will be automatically validated and protected against future judicial appeals. This would grant Congress unprecedented power without effective control, weakening constitutional supremacy and the system of checks and balances that prevents abuses of power.
Limits to the derivative constituent power: the essential role of the SCJN
The derivative constituent power, which allows Congress to amend the Constitution, is not absolute. There are implicit and explicit limits that the SCJN, in its role as a constitutional control body, is responsible for safeguarding. These limits are essential to protect human rights and guarantee democratic balance. The SCJN's ability to invalidate reforms that violate these principles is not an optional power, but a guarantee that the fundamental values of the Constitution will not be compromised by temporary legislative majorities.
The SCJN has established, through its jurisprudence, that constitutional reforms must respect the essential core of human rights and democratic principles. Without this judicial control, Congress could approve modifications that contradict Mexico's international commitments and the rights enshrined in the Constitution, without the possibility of being legally challenged.
International examples: Germany and Spain
At the international level, other countries have faced similar challenges and have reaffirmed the importance of judicial control over constitutional reforms.
Germany case: German Federal Constitutional Court
The German Federal Constitutional Court is recognised for its key role in protecting unalterable principles, particularly through Article 79(3) of the Basic Law, which states that certain aspects of the Constitution, such as human dignity and the federal structure of the State, are intangible and cannot be amended. This article acts as a safeguard against legislative changes that attempt to alter the essential foundations of the State.
In the Lüth case (1958), the Court affirmed that fundamental rights are not just individual subjective rights, but objective values that radiate to the entire legal order. This judgment stressed that any reform that seeks to modify these principles must be subject to judicial control, ensuring that political majorities cannot erode fundamental rights or human dignity.
Another example is the case of the German Communist Party (KPD) in 1956, where the Constitutional Court declared unconstitutional a political party that sought to abolish the democratic order. This decision demonstrated the importance of the Court's vigilance over attempts to distort the democratic system, including through constitutional reforms.
Spain case: Judicial autonomy and the General Council of the Judiciary (CGPJ)
In Spain, the General Council of the Judiciary (CGPJ) has been the focus of debates about its independence and autonomy in the face of legislative reforms. A reform proposed in 2013 attempted to modify the method of electing its members, which was criticised for bringing the CGPJ closer to political interests. However, the Spanish Constitutional Court has established, in rulings such as 108/1986 and later, that the independence of the CGPJ must be guaranteed to preserve the principle of judicial autonomy, a central value in the Spanish democratic system.
These decisions reflect a key principle: judicial autonomy is essential to maintaining the rule of law, and any reform that puts that independence at risk must be subject to rigorous judicial review. The Spanish experience shows how constitutional control is essential to prevent legislative reforms from weakening judicial independence and, therefore, the separation of powers.
Risks to human rights and democracy
One of the greatest dangers of the proposal is that legislative majorities, without judicial oversight by the SCJN, could approve reforms that violate human rights and the constitutional block. Since the constitutional reform of 2011, Article 1 of the Mexican Constitution guarantees that human rights recognized in the Constitution itself and in the international treaties to which Mexico is a party have supreme rank and must be respected by all authorities, including the Legislative Branch. By suppressing or limiting the control of the SCJN, this framework of protection would be weakened, allowing reforms that erode progress in human rights.
The pro persona principle , which requires interpreting the rules in a way that favours the broadest protection of human rights, would also be at risk. The SCJN has played an essential role in defending this principle, ensuring that legislative reforms comply with the Constitution and international commitments. Without effective judicial control, the rights of the most vulnerable people could be undermined by reforms driven by short-term political interests.
Concentration of power and erosion of the division of powers
Another worrying aspect of this proposal is that it jeopardizes the separation of powers, one of the founding principles of our democracy. Article 49 of the Constitution establishes that the Executive, Legislative and Judicial branches must operate separately and independently, guaranteeing a system of checks and balances that prevents the concentration of power. If Congress is exempt from any judicial control over its reforms, the Legislative Branch would concentrate disproportionate power, eliminating the supervision of the SCJN as a constitutional check.
Allowing Congress to act without judicial counterweight amounts to merging politics and law, which is contrary to Kelsenian theory. This would destabilise the constitutional architecture, as political interests could prevail over the legal principles that should guide the decisions of the State, undermining democratic stability and the protection of rights.
Conclusion
The proposal to limit the SCJN's ability to review constitutional reforms represents a serious setback for Mexico. By weakening constitutional supremacy, eliminating judicial checks and balances and concentrating power in Congress, it opens the door to a scenario where fundamental rights and democratic stability would be in constant danger.
Judicial control is not an obstacle to change, but rather a guarantee that the fundamental principles that sustain our democracy and protect our rights remain intact. It is essential that Mexican institutions maintain a balance that allows the proper functioning of the rule of law. The SCJN must continue to play its role as guardian of the Constitution, ensuring that any reform is in line with the values and principles that define our country.
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