The recent discussion in the Court about the unofficial preventive prison contemplated in the article 20th of the constitution put on the table, once more, the interpretation of the human rights of international sources incorporated through the article 1st of the constitution.
The process of incorporation of international law and, in this case, of human rights contemplate in treaties is in it self an issue of internal judiciary order of the States. Meaning, is a sovereign decision of the States on where and how do they incorporate to national systems the norms of international source. Once this happen, the norms are understood as of national order and will have to be interpreted in a systematic way.
The article 1st, as well as other constitutional articles refer to standards of international source, such as article 89th section 10th and article 42nd section V and VI, for example. This means, the content of the norm, or at least part of it can be found in international law. And just like that, the constitutional right block, sees the rights sourced nationally and internationally. Once understood, we couldn’t talk about different right hierarchies in relation with the type of source and in accordance of the provisions of the 1st article of the constitution, that sees the pro persona principle, the norm (no matter if its source is national or international) that provides the wide protection of people must always be applied.
Nevertheless, under the thesis contradiction 293/2011 prevails at present, the criteria of the “explicit constitutional restrictions”; meaning that the Court makes prevail some constitutional norms above others without much explanation, by the way. It would seem then that in the constitutional text exist norms more constitutional than others and on these last ones there is no control on constitutionality nor convencionality to be made. And this criteria is binding for the entire judiciary branch.
The Court, makes to prevail its constitutional interpretation, above a systematic interpretation of the constitutional norms and of the rights of the people. Therefore, there seems to exist a hierarchy between constitutional norms and constitutional supremacy is the supreme judicial asset to protect even in front of human rights.
It is true that the application of human rights international source not necessarily provides with the widest nor most beneficial protection. This was previously established by the Court in the amparo in revision 1174/2017, therefore the importance of the systematic interpretation under the pro person principle light.
This recent debate creates more questions than answers: Why the constitutional supremacy, in some cases, its no compatible with rights protection? Why are international norms incorporated to the internal order interpreted in a different way due to coming “from outside” the system? What is at stake in terms of constitutional norms? And what could be the international consequences of favoring the constitutional supremacy above rights?
I will refer to this last question; at the same time the court discussed about the unofficial preventive prison, the IHR Court examined the same issues in the frame of the case Garcia Rodriguez and Reyes Alpizar. Same issues, different regulatory parameters. The Court interpreting the reach of a constitutional norm that considers a valid rights restriction, the IHR Court interpreting and making a conventionality control of the PPO in the light of the Inter-American Convention on Human Rights.
The called constitutional restrictions are inoperable in the IHR Court, unless the mexican state had made an express reservation to certain articles of the convention on the basis of such restrictions, which did not occur when it ratified the said treaty. Its incumbent upon the IHR Court to rule on the international responsibility of the State for violation of international obligations, due to not protecting the rights of inter-American source. Will the IHR Court be who solves this debates on constitutional norms of different hierarchy? Could the IHR Court, by doing a conventionality control of the mexican Constitution, declare the unconventionality of the constitutional restrictions? In other words, could it be that by not interpreting the constitutional human rights systematically, the Court is yielding constitutional control to the IHR Court?
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Tania Gabriela Rodríguez HuertaFull-time professor |
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