PRACTIQUE LEGAL - The General Applicability (Erga Omnes) of Certain Case Decisions Issued by Mexican Federal Courts as a Result of Mexico’s New Amparo Law (Ley de Amparo).

Mexico's new Amparo Law (Ley de Amparo) was published and entered into force during the month of April, 2013, establishing new legal concepts such as the general application of some case decisions issued by federal courts in which such courts decide to reaffirm the unconstitutionality of a law or generally observed legal provision. Such case decisions reaffirming the unconstitutionality of a law are defined as "General Declarations of Unconstitutionality.. The effect of general application, or erga omnes, of certain decisions issued by Supreme Courts of other countries has proven to be a powerful and useful tool in controlling attempted lawmaking activities by judicial authorities to review and interpret the application of laws and other general dispositions. Unfortunately, two important limitations exist on the broad effect of generally applicable declarations of unconstitutionality of laws in Mexico, which are: (i) such does not apply in tax cases; and (ii) such may not be granted with respect to judicial decisions issued under the previous, now abrogated, Amparo Law (Ley de Amparo). The first restriction is totally without foundation and shows the federal government's fear of the negative economic impact on public finances that such a general application of judicial decisions could have in cases judging the constitutionality of tax issues. Generally applicable judicial decisions on a law's unconstitutionality could serve as a regulatory valve on fiscally abusive laws that run contrary to the constitutional principles contained in Mexico's Federal Constitution. If tax laws are declared as generally unconstitutional, then reaffirmed decisions confirming such unconstitutionality should have broad, general effects on all similar cases. Further, the restriction on tax procedural laws not being subject to general application and reaffirmation of unconstitutionality is similarly unjustified. The second of the restrictions referred to above limits the scope and effects of the general declarations of unconstitutionality in important ways because such could not be created in all cases resolved by the Mexican Federal Courts before the enactment of Mexico's new Amparo Law, which creates confusion and limits the scope of new general declarations of unconstitutionality. For decades Mexican federal courts have established a real theory of unconstitutionality in various matters with respect to which Mexico's Supreme Court of Justice; now it is unable to issue general rulings of unconstitutionality in such areas. It is truly shameful that this important formula of control of the legislation activities has been mutilated, which has left the real value of this relatively new juridical figure in doubt. Of course, one must distinguish the general declarations of unconstitutionality from other mandatory case decisions issued by federal courts. In this latter case, we are dealing with individual decisions issued in specific cases in which the court may even deal with matters of unconstitutionality of laws, but only applies to the case at hand in which a party has filed its Amparo lawsuit and the application of jurisprudential precedent. This aspect deals with the principle of relative effectiveness of Amparo lawsuit decisions and does not provide a generally applicable precedent, as would be the case if a general declaration of unconstitutionality were involved. A specific process exists for general declarations of unconstitutionality, which is indispensable to follow so that the general application of court resolutions of unconstitutionality may be given effect. Such process requires Mexico's Supreme Court of Justice to declare, at a minimum, on a second occasion, the unconstitutionality of a law or general provision, such as an international treaty or regulation to an existing law. As part of a very peculiar procedure that applies in the case of Mexico, upon the issuance of a reaffirmed declaration of unconstitutionality of a law or general rule, the Supreme Court of Justice shall also notify Mexico's Federal Congress, or the body that issued the general rule that has been declared unconstitutional, so that, within a term of 90 days, such body shall amend or repeal the law or general disposition that has been declared unconstitutional. If such law or general rule is not amended or repealed, Mexico's Supreme Court will issue a general declaration of unconstitutionality, which shall define the date such decision will enter into force and shall specify the scope and effects of the declaration of unconstitutionality. Finally, general declarations of unconstitutionality may not be applied retroactively, except in the case of criminal law matters, in which general declarations of unconstitutionality benefit the indicted or sentenced party. While the creation of this new form of constitutional control over judicial lawmaking power is welcomed, it is a shame that it has been saddled with all of these restrictions since its creation.