The dictatorship of the "Permanent Constituent Power in Mexico
There is a legend that the thinker and philosopher , John Locke proposed the paradox of the sock: If I have to mend my socks, is it still the same as the original? Moreover, if the sock has been patched more than once and all the material replaced by a new one can say is it still the original sock? or is it a sock again?
Locke actually do not know if he talked about the originality of his socks, but I know that this story reminds me of the Mexican Constitution.
Article 135 of the Constitution establishes the procedure for reforming, and this is a more complicated procedure than the one designed to create common law, it is understood that Mexico has a rigid constitution. The procedure established in 135 requires qualified majorities in both houses of Congress and also the majority of state legislatures. That is, in each chamber must approve the initiative 2 / 3 of the legislators present and at least 16 local legislatures.
The set of organs and masses are known in the theory of the constitution as a permanent constituent power, also to the reviewer, derivative or instituted.
Constitution The term regulation is relatively new constitutionalism in Continental Europe and Latin America. Before World War II, a Constitution was rather understood as a political, rather than a higher legal standard to which all must conform and whose lower rigidity in the process of reform, due to reasons of efficiency and regulation (acceptance of observing).
In the reconstruction period Europe and then in the democratic wave (Huntington ) were established constitutional rules, ie constitutions binding as any other rule of law and also higher. Thus, German or English constitutions establish the relationship of power to your standards.
To ensure the constitutionality of the entire legal system, ie all lower legal standards to the Constitution (laws, regulations, rules, judgments) establishing a specialized court to review the no contradiction between the lower standard and higher standard. This court designed by the Viennese jurist Hans Kelsen, is called Constitutional Court, and was introduced from the twenties in Austria and in the postwar era and the following democrtización waves in almost all countries of continental Europe-Germany, Italy, Spain, to name a few -.
In 1787 adopting the United States Constitution, which establishes a system of review of the constitutionality of diffuse as opposed to the concentrate of the Constitutional Court. That is, all judges must review the constitutionality of the laws that apply. In 1803 Justice John Marshall in Marbury v. decision Madison, established the doctrine of judicial review or judicial review, ie, as the Chief Justice, the Supreme Court has the power to review legislation and other acts of Congress and decide whether or not they are compatible with the Constitution and if not, them out of the system. This decision gave the United States Constitution and regulations became an unwritten principle of the U.S. Constitution. Since the nineteenth century in the United States, Congress can not issue laws or acts contrary to the Constitution, are thus a normative Constitution.
Mexico established in his narrative an ambiguous regulations, as our Constitution was influenced by the English and the U.S., so that over two hundred years, has been formed as a mixture of both systems, the U.S. prevailed in the rules governing the federation and the constitutional legal order. Thus, in the present Constitution, for example, article 133 is in its wording, identical to the second paragraph of Article VI of the United States Constitution establishes the hierarchy of the legal order, by placing in the top to the Constitution and empowering all judges to take care of the constitutionality of the legal system. This, in combination with the 135 on the reform process, have that our Constitution was aiming to become law and that acts of Congress should be reviewed by our Supreme Court. To some extent it was.
During the great judicial reform of the nineties, our Court gave the power to review the constitutionality of laws and acts of Congress, through the action of unconstitutionality and the control of the division of powers and adherence to standards by the constitutional bodies, by judicial review. Both media and joined Centennial injunction, ie guarantees trial by which violated rights are restored by the authority of any individual. Of it is found in the Mexican Supreme Court sort of Constitutional Court, ie, a court designed to review and monitor the authority to act always in accordance with the Constitution, that its powers are consistent with the Constitution and that any action taken (laws , decrees, regulations, judgments, standards, etc.) are always under the Constitution.
see What is the rule of law .
is a guarantee for our rights and freedoms and to democracy, the fact that the constitutional bodies should act solely under the authority granted in the Constitution. So the theory of the constitution Powers distinguish between constituent and constituted power.
original sock: The liberal Constitution of 1857
Venustiano Carranza, revolutionary constitutional president then presented to Congress a bill to reform the 1857 Constitution which was passed in expectations. In fact the Congress meeting in Querétaro in 1916 the mission had not given us a new Charter, but to revise the Charter of 1857 and introduce liberal revolutionary demands. Major political, economic social and supplemented to the Constitution of 1857 gave as a result the Constitution under which the Mexican government today is organized: The Constitution of the United Mexican States, 1917. The vocation of the Constitution of 1857 was that of a liberal constitution, that is, a constitution that recognizes the sovereignty of the people, granting freedom to individuals and establishes the separation of powers. With the Mexican Revolution of that suspended the Constitution and in 1913 he announced the Plan de Guadalupe and the appointment as Commander in Chief of the Army, to be known Constitutionalist Venustiano Carranza. Constitutionalist Army sought the return of the 1857 Constitution, but later realized it was no longer up to the revolutionary demands.
By being altered by social and political claims of the Revolution, the Constitution of 1857 became a new promulgated on February 5, 1917, which has the honor of being the first social constitution of the world, then you follow the Russian in 1918 and Weimar in 1919.
is said that our Constitution was born with a legitimacy deficit, since in fact the Congress had been elected to give us a new Constitution, but to reform the force. It would be like today make use of 135, but at the end of the day the Constitution was enacted 2008. That is, the Power Reviewer regulated in Article 135 would be exceeding its powers becoming a Constituent Assembly.
is said that our Constitution was born with a legitimacy deficit, since in fact the Congress had been elected to give us a new Constitution, but to reform the force. It would be like today make use of 135, but at the end of the day the Constitution was enacted 2008. That is, the Power Reviewer regulated in Article 135 would be exceeding its powers becoming a Constituent Assembly.
While the constitutional breakdown is an undeniable fact, the people's need to adopt a new Constitution, to require a new normative order and the creation of new institutions of government, is a right over two centuries has been exercising the people of Mexico and has drawn the constitutional history of our country as a map of struggles for democracy and the rule of law. But there will also be accepted that the more than 500 reforms to our Basic Law has suffered have been to undermine the Standard and understand as "a government program, rather than the Constitution in the Mexican state.
The problem of the twentieth century Mexican Constitution was found in the strong presidential system "of fact and law," because the absence of a real division of powers, the constitutional control of performance and production subconstitucionales standards and the reform, went to the executive, so he was given an enormous political power to adapt and interpret the Constitution to legitimize mood. The executive broke the bond of constitutional supremacy and regulations do not respected and no limits to adaptation, so for several years enjoyed enormous political power in the legal and constitutional. Production rules, application and interpretation, were controlled by a strong presidentialism controlled the legislative and judicial branches, making an ordinary Constitution could be changed and transformed depending on the circumstances.
Today, several years away from the PRI government and concentrated executive supremacy over the Constitution, instead of moving towards a democratic constitutional framework, we have changed our love, now, we are vassals of Power Reviewer.
Tyranny Permanent Constitution of the Mexican
Above and talked about the difference between the powers that be and the Constituent Power. EJ Abbot Sieyès in his work What is the Third Estate described the pouvoir constituent which attributed the power to be original and unique, it can not find ground beside himself. Besides being an unconditioned power, ie, which has no formal or material limits. Sieyès himself distinguished between the powers that be and the Constituent Assembly, the former depend on the Constitution "because in every part of the Constitution is the work of the constituent power and not the powers that be." The powers that be are those that were created by the Constitution, that is, its existence and its action depends on it, can not be more than the constitutional norms entitle them, nor can less. Instead, the constituent power is organized and the people themselves can do anything. The powers that is based on legality (constitutionality) of their actions, whereas the constituent power is based on the political legitimacy of its actions, has no legal foundation as it creates the law. It is the principle of law.
Obviously, nation-states who have years of existence, and some old constitutions, one can not speak of a founding Constituent Assembly in If the people want a new Constitution. Think of the time in the Founding Fathers of the United States were given for the first time a federal government (and designed it according to their needs and ideals) or think of a Germany in reconstruction where the founding fathers and mothers wanted to start from zero. Or now, think of Kosovo, in Iraq or the former Soviet republics. Mexico has a nearly two-century constitutional history so that, if we wanted to give us a new Constitution, now no longer possible to speak of a founding assembly.
Obviously, nation-states who have years of existence, and some old constitutions, one can not speak of a founding Constituent Assembly in If the people want a new Constitution. Think of the time in the Founding Fathers of the United States were given for the first time a federal government (and designed it according to their needs and ideals) or think of a Germany in reconstruction where the founding fathers and mothers wanted to start from zero. Or now, think of Kosovo, in Iraq or the former Soviet republics. Mexico has a nearly two-century constitutional history so that, if we wanted to give us a new Constitution, now no longer possible to speak of a founding assembly.
Since 1789 established the requirements for a constitution in the Universal Declaration Rights of Man and the Citizen: establish the division of powers and guarantee human rights. So since there are physical limits to this constitutional power, now also oversees the international community that the meetings are democratic, consider the case of Bolivia's Evo Morales, where required by the international community the new constitution is voted by qualified majority in the Assembly and that is also accepted by a majority of Bolivian citizens. So today the pouvoir constituent material does have limits and formal.
The classics are the powers that executive, legislative and judicial branches and with them put the Power Reviewer, for its existence and powers are laid down in Article 135, ie unlike the pouvoir constituent, the assembled, including the reviewer, are directly subject to the Constitution.
The example of longevity in the U.S. Constitution is based on the moderate and beating the guarantees of permanence that constitutions are to leave adapting to the circumstances: the interpretation and reform. Interpretation is the regular warranty, ie the legislature every time you create a rule to interpret the Constitution and the Executive and the same judge, especially the ministers of the Supreme Court. Reform is the outstanding guarantee, ie the warranty that is triggered when from the interpretation is not possible to bring the Constitution into reality. The United States Constitution has undergone 27 amendments or reforms, the top ten were taken, all in 1791 and comprise the Bill of Rights.
In contrast, in Mexico, the legislature prefers to amend the Constitution instead of seeking solutions under the existing text rather than interpreting it, I'd rather take the easy way and reform abusing this guarantee of permanence and flouting the norms of the Constitution. The tyranny of power in particular reviewer is the name the legislators themselves give it extraordinary power: Permanent Constituent Power. In Legal Science, the words are crucial, are the tool, when we use the word permanent constituent, we are laughing at the same time, we are mocking the basic principles of Constitutional law, as we are saying that there is a difference between the original constituent , and the powers that be. Means that the Mexican government does not live in the world of legality, but lives in the world of politics and constitutional bodies can handle anything. About
called Indian Act, which actually was a constitutional amendment to Article 2, the Supreme Court ruled you do not have the power to review the constitutionality of the constitutional reforms material, because the Power Reviewer has no limits, but the formality of the procedure. This means that under our Constitutional Tribunal, ie ultimate guarantor of our constitutional legal order, has decided that the Branch Auditor has no material limits, can do everything and thus confirms the absurdity of having a Permanent constituent power or what would be the same as saying that there is the possibility that 2 / 3 of lawmakers in each chamber half federal and state legislatures are abstracts of nature constituted to amend the Constitution as the best they see fit and the worst time they want.
Abstraction half of the constitutionality of Power Reviewer, ie only on the content of constitutional reforms, it is wrong interpretation of our Court and a danger to the norms of our higher standards. Well, first, the same 135 states "For additions or amendments shall become a part of it ..." As a conservation effort to be interpreted that there are limits to the power implicit Reviewer, such as fundamental rights, the separation of powers, popular sovereignty, federalism, presidentialism, constitutional supremacy, for just mention the most important. Secondly, our Constitution provides for the referendum on constitutional reforms, so that we are subject to the dictatorship of Power Reviewer, because if there are no material limits and there is a minimum requirement of direct democratic participation, local and federal lawmakers can do what they want with the Constitution, even though their very existence depends on it.
political reality involves the Constitution and its leaders to change the obstacles instead of playing. Turn it over to the fence then. The states with constitutionalism rooted jump fences, interpret the rules of the Constitution, legislate, and if anyone see a contradiction with the Constitution (in any of the arrangements: unconstitutional action, controversy and under) is using the power of review. The Mexican Constitution has undergone about 450 amendments, this is not proof of an entrenched legal constitutionalism, on the contrary, is proof that we do not understand what it is for the Constitution and continue to see as a political pact, for his approval requires consensus federal and local majorities. We continue to see every opportunity for constitutional reform as a political endorsement, when it should be part of other procedures.
The fact that there a standard of standards, means that in theory all the basic principles of political and legal system are contained therein, therefore, and not tied to future generations is that the Constitutions are intended to be general and abstract as possible, so that the legislature has a policy space and can legislate democracy. If every time the legislature is not in the Constitution verbatim to an answer, is established in reforming power, what regulations can have the Constitution? In other words, how seriously can you expect from the game if every time we play and do not like a rule, the change? The
Sports always very clearly illustrate the problem of legal rules: Suppose a neighborhood to organize a football tournament, for it involved writing a little regulation to establish who are the authorities, how to choose, how to form teams, which are the rules of the game, who settled in the event of dispute over the interpretation of these rules. Since it is agreed by all the rules, appointing authorities, form teams and the tournament begins. In the first game of the teams decide you do not agree with the offside rule and instead of waiting to be committed out of place in a play and discussed with the arbitrator and the other team, the amended regulation. The fourth day before the game two players are injured on another computer, and instead of going to talk to authorities and other equipment to fix the problem, decides to amend the rule to provide that instead of 11 players, will now 9. On the 7th day of the tournament, losing team decides that the losers will play each other to decide who is the leader of the losers, and together, change the rules. This is the case throughout the tournament, the final day of the red team scored 2 goals and the blue team 1. Yet as the blue team does not agree that this flag indicates that the red team won, because it believes that the tournament rules are mandatory, so that takes the trophy and take it away.
The problem facing the 1917 Constitution entering the XXI century is its legitimacy and effectiveness, indeed, the supreme law of our country has no constitutional norms because the feeling of Mexico has been led the wrong way. Our leaders believe that every great idea, every great deal and every great plan must have a place in the Constitution. They forget that it is the supreme law and not the great political pact that had once been. The Constitution, in the contemporary sense, is no longer the political pact by which meet the political forces, is the standard case and gives rise to the legal system and if you change every time something we do not like or whenever you do not find in the texts the idea, plan or program that we seek, we are undermining their regulations.
Mexico aspires to be a state of laws and stop being a state of men, we went from being a state subject to the wishes of the current president to become a state subject to the wishes of the Permanent Constitution . Quitémosle residence to Constituent honor our founding fathers and look forward.
The Mexican government needs to follow the rules, learn to play. Games constitutional democracy requires respect for the law and pluralism required to give each actor his place, and our Supreme Court needs to sit a few rows ahead.
What future awaits the Constitution of 17? Believed to be indispensable on the one hand, a political pact and on the other hand, a full review or better, a new constitution, "but also believes that the constitutional effectiveness is directly in the constitutional sense of that State, ie its rulers and its people. Constitutional effectiveness is not creating another if its perfection, understanding that bond of supremacy and norms that the Constitution establishes the constitutional order that a people waiting, but while these people do not live in Constitution and its rulers not exercise the power in Constitution, there is no perfect constitution to ensure a Democratic Constitutional State. Shall be at Lasalle said in the nineteenth century "a sheet of paper", as today is the Constitution of the United Mexican States, 1917.
recommend this book: The Value of Normative Constitution Donatt Cecilia Mora in less than 200 pages explains very clearly the contemporary theory of the constitution.
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