Breathe
By Leticia Bonifaz
Last Thursday, January 4, the new Minister of the Supreme Court of Justice of the Nation, Lenia Batres Guadarrama, was sworn in and robed, replacing Arturo Zaldívar Lelo de Larrea, who retired early, leaving a new appointment opportunity for the current President of the Republic. If Arturo Zaldívar had finished his term of office, it would have been up to the next President of the Republic next December. Likewise, since the appointment was not made by a qualified majority in the Senate, it was made directly by the Federal Executive. This is the first time this has happened since the redesign of the Court at the beginning of Ernesto Zedillo's presidency.
We must thank Lenia Batres for openly and clearly stating in her inauguration speech what her current position and thinking is regarding the tasks performed by the Supreme Court. As the saying goes, there is no deception when there is a warning.
Is it possible that in some of the exposed points you may modify your position later on? At present, her vision is external, could she change it once she is inside? It is wise to change her mind and she has already done so with respect to the direct appointment of the President in the absence of consensus in the Senate. When she raised it*, she was far from guessing that she herself would benefit from this constitutional design.
The first thing to take into account is that, at least in the first years, Minister Batres will have to excuse herself from hearing the matters in which she intervened or gave approval from the Office of the Legal Counsel of the Presidency. There would be a conflict of interest in judging a matter in whose design she participated from the Executive. She will also not be able to hear matters related to Mexico City since she is the sister of the current Chief of Government, formerly the Secretary of Government of Mexico City.
By taking an oath to comply with and enforce the Constitution and the laws that emanate from it, the judge must comply with Article 51 of the Amparo Law, which seeks to guarantee impartiality in the administration of justice. She may voluntarily excuse herself; she may be asked to do so by her peers; recusal may be requested by the parties in the case of amparo proceedings or by anyone who has brought a constitutional action or controversy. If he/she does not excuse himself/herself, he/she will incur liability.
On the other hand, among the points raised in the speech he assured that among the litigants it is SAID that the Constitution says what the Court says. And this is clearly so. It is precisely the function of the Court, as a collegiate body, to say what the Constitution says as the last interpreter. If there is a conflict before the Judiciary, it is that there are different interpretations with respect to a precept of the Constitution; of the laws with respect to the Constitution or of the Constitution with respect to the International Treaties and it is up to the Court to decide in the last instance. Only some of its resolutions, few so far, related to human rights, could be appealed before the Inter-American Court.
That the judge was the mouth of the legislator is a 19th century position. The vitality of the law now has to do not only with the text, but with the context of application and with the way in which the jurisprudence is constituted from the precedents that stabilize the interpretation.
Likewise, in recent times, regardless of the family origin of the law: Roman-Germanic or Anglo-Saxon, decades ago, in practice, the best of both worlds has been taken for the benefit of those who demand justice. And that is the good news that we can take from last Thursday's speech, in terms of human rights there is a vote that will add to the strengthening of the principles of the first article of the Constitution.
The new minister begins her tenure within a power that she has criticized from the outside and in her first speech. If there is no reform to the Court, she will be there for the next 15 years. She will have to act before the power of 4 different presidents of the Republic, casting votes that from today are already subject to scrutiny like those of the rest of her peers.
* In 2000, when she was a deputy for the PRD, she promoted an initiative so that the President would not have the last word in the appointment of ministers.
The opinions expressed are the responsibility of the authors and are absolutely independent of the position and editorial line of the company. Opinion 51.
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