Reform of Constitutional Supremacy: A Detailed Analysis

Introduction

Last October 24, the Mexican Senate approved a constitutional reform that seeks to limit the power of the Judicial Branch to review and eventually invalidate constitutional reforms. This measure has generated an intense debate on the division of powers, constitutional supremacy and the protection of human rights.

Context of the Reform

Prior to this reform, there were three mechanisms for the control of constitutionality in Mexico: the amparo trial, the constitutional controversy and the action of unconstitutionality. These mechanisms allowed citizens and institutions to challenge laws or acts of authority that they considered contrary to the Constitution or international treaties.

However, the comprehensive reform of the Judicial Branch, approved in September, introduced significant changes in the structure and operation of the Judicial Branch, including the direct election of judges and ministers through a lottery system. This reform generated several controversies and was challenged before the Judicial Branch.

The Constitutional Supremacy Reform

Faced with this scenario, the political party Morena presented a constitutional reform initiative with the objective of limiting the possibility that the Judicial Branch could declare constitutional reforms unconstitutional.

The new reform seeks to modify Article 61 of the Amparo Law, elevating to constitutional rank the impossibility of filing an amparo lawsuit against a constitutional reform. This means that once a constitutional reform has been approved, no court may review it or declare it unconstitutional.

Implications and Questions

This reform raises several questions:

• Division of Powers: By limiting the Judiciary’s power of review, it could be argued that power is being concentrated in the Legislative Branch, unbalancing the division of powers.
• Constitutional supremacy: The reform could be interpreted as a limitation to the principle of constitutional supremacy, by making it more difficult to protect fundamental rights when they are violated by constitutional norms.
• Protection of human rights: By restricting the possibility of challenging constitutional reforms, the protection of human rights could be limited, especially when these reforms affect fundamental rights.
• Democratic legitimacy: The approval of this reform under a questioned legislative process has generated doubts about its democratic legitimacy.

Conclusions

The constitutional supremacy reform is a measure that has generated an intense debate on the balance of powers, the protection of human rights and democratic legitimacy. Its long-term implications are still uncertain and will depend on how it is interpreted and applied by the courts and the authorities.

It is important to note that this reform has been subject to various criticisms and has generated concern in the legal community and civil society. It will be essential to closely follow its development and its possible effects on the Mexican legal system.

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