MEXICO CITY (CN) — A ruling expected from Mexico's Supreme Court on Tuesday has the potential to change the fates of tens of thousands of people held in the country's prisons without convictions.
But the decision on the constitutionality of mandatory pretrial detention will also determine the extent of the Supreme Court’s regulatory jurisdiction.
The court began debate Monday on suits brought by the National Human Rights Commission and several senators claiming that mandatory pretrial detention violates Mexico’s Constitution.
Chief Justice Arturo Zaldívar opened the debate by calling the initiative “one of the most important proposals that has been presented in the history of this tribunal.”
Justice Luis María Aguilar brought the case before the court, saying: “When limits on personal liberty such as mandatory pretrial detention are established, it must be done with great care, as the limits or restrictions that are established cannot be absolute, but rather the opposite. They must be exceptional and only applicable under extraordinary and grave circumstances.”
While the suits aim to eliminate mandatory pretrial detention for a number of crimes, ranging from homicide to organized crime to auto theft, the case has broader legal implications due to the cautionary measure’s enshrinement in the Mexican Constitution.
Although she called the issue a “justified social complaint,” Justice Yasmín Esquivel Mossa said Monday that she planned to vote against unconstitutionality, stating that she does not “share the idea that this Supreme Court has the powers to nullify a regulation” of the Constitution.
Three other justices also expressed their intentions to vote against unconstitutionality before the court adjourned Monday.
A supermajority of eight of the court’s 11 justices is required to deem a law or regulation unconstitutional, so it appears that the initiative will be rejected, no matter where the six remaining justices fall on the issue.
Currently, the jury is out on the Supreme Court's ability to nullify an article of the Constitution. The debate resides in whether or not the international treaties dealing with human rights that Mexico has signed trump its own Constitution.
Justice Loretta Ortiz Ahlf, one of the four who expressed her intention to vote against unconstitutionality Monday, agreed that mandatory pretrial detention violates the United Nations International Covenant on Civil and Political Rights and the American Convention on Human Rights. She placed the onus of complying with the treaties on the Congress, stating: “I hope it does.”
Even court precedent waffles on the issue.
A 2011 case that put international treaties on the same level as the Constitution stated that in the event that harmonization between the two is impossible, judges should apply “the criterion that turns out to be more favorable for the protection of people’s human rights.”
However, the ruling also states that “when in the Constitution there is an express restriction of the exercise of [human rights], it must be what the constitutional text establishes.”
“It’s contradictory, I know, but that’s how the Mexican Supreme Court is,” said Sergio López Ayllón, a research professor in the law department at the Mexico City-based government think tank CIDE.
“The Mexican Supreme Court does have broad powers to interpret the Constitution,” said López. “It has the final say.”
However, that 2011 ruling put both Article 19 of the Constitution and the international prohibition of what that article stipulates on the same legal standing, and now the court, legal experts and politicians disagree on which should prevail.
“Given that both are considered to be of constitutional rank, which one should be applied?” said López. “Here is where the court is divided.”
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