How Mexico's Amparo Law Lost its Way

Mexico's Amparo trial, a beacon of hope enshrined in the 1857 Constitution, was born to be a David against Goliath. Imagine a lone citizen, slingshot in hand, facing the mighty government. The Amparo was their weapon, a legal remedy to challenge the state's overreach and protect individual rights.

Fast-forward 160 years, and the slingshot seems to have found a new owner. Business groups, not ordinary citizens, are now the most frequent wielders of the Amparo, using it to shield their economic interests from government policies. This wasn't always the case. The Supreme Court, in a 2011 twist, expanded the Amparo's reach to encompass "collective and diffuse" rights, allowing civil society organizations to join the fray. This opened the door for environmental groups to challenge polluting projects, for instance.

But in April 2024, Congress threw a wrench into the system. A new law declares that even if an Amparo challenge proves a general law unconstitutional, the ruling won't have a wider impact. It becomes a victory for the individual plaintiff only, not a precedent for society. This is like winning a battle but losing the war.

The reform's architects claim it prevents rogue judges from interpreting "social interest" too broadly and effectively rewriting laws. They argue some judges have wrongly equated individual rights with the public good, essentially using the Amparo to strike down laws with nationwide consequences.

But critics see a more sinister motive. By limiting the Amparo's reach, they say, the government is shielding itself from accountability. If a law unfairly favors big business, for example, corporations can use the Amparo to protect their advantage, but the ruling won't force the government to change the law for everyone else.

The debate gets even more curious when you delve into the legalese. The reform contradicts itself, some argue. It removes the judge's power to suspend a law deemed unconstitutional, while simultaneously criticizing judges for misusing that power in the past. It's like clipping the wings of a bird and then accusing it of flying too high.

A Feisty Dispute Between Business and the State

Mexico's electricity sector is about to swing, but with a surprising lead: private companies. This unexpected turn of events comes courtesy of a recent Supreme Court ruling on the "Amparo" – a legal remedy that allows individuals to challenge laws they deem unconstitutional. In this case, the Amparo became a weapon in the hands of private energy companies, firing a shot across the bow of President Lopez Obrador's ambitious electricity reforms.

The story begins with the 2021 Electrical Industry Law (LIE), a piece of legislation designed to strengthen the state-owned Federal Electricity Commission (CFE). Private companies saw this as a power grab, potentially squeezing them out of the market. So, they donned their legal sombreros and sashayed into court, brandishing the Amparo like a sequined fan.

The Supreme Court, ever the drama director of Mexico's legal stage, issued a ruling that sent shockwaves through the system. They found parts of the LIE unconstitutional, arguing it favored the CFE and stifled competition. The Court's decision only applied directly to the two companies who filed the Amparo. It wasn't a blanket "no mas" to the entire law.

This has some legal pundits scratching their heads. The Amparo usually has "general effects," meaning a win for one can become a win for all similarly situated. But in this case, the Court opted for a more "private party" approach. Critics see this as a worrying trend, where the Amparo becomes a tool for the privileged few, not the public good.

The Court's reasoning is a bit of a head-scratcher itself. They argue the LIE could create a CFE monopoly, violating competition principles. Yet, the Mexican Constitution allows the state exclusive control over strategic areas like electricity. It's like saying the tango is a waltz – both involve twirling, but the steps are different.

A Step Back for Mexican Justice?

This reform has lawyers and judges alike juggling concerns. The National Association of Business Lawyers, the Bar Association, and judges themselves are all raising their voices in protest. Their fear? The reform undermines access to justice and disproportionately impacts the most vulnerable.

Imagine a group of farmers facing an unfair law affecting their livelihood. Under the current system, they could use the Amparo to challenge it, potentially benefiting everyone in the same situation. The reform, however, proposes a scenario where only those who file the Amparo see a change. The rest, left on the sidelines, would have to navigate the legal maze themselves.

This, critics argue, violates the principle of non-discrimination and the "progressiveness of human rights." It's like saying human rights can only go up, not down – a concept that seems counterintuitive at best.

The reform's proponents, however, see it as a way to streamline the process and prevent frivolous challenges. They argue the current system can be bogged down by legal technicalities, prioritizing form over substance. In their ideal world, the Amparo becomes a laser-focused tool for individual cases, not a broadsword for sweeping reforms.

This brings us back to the tightrope metaphor. The current Amparo allows judges some flexibility, letting them consider the broader impact of a ruling. The proposed reform wants them to stick strictly to the letter of the law, potentially sacrificing the "effectiveness" of the Amparo in favor of a more rigid system.

The debate boils down to a fundamental question: should the Amparo be a champion for the individual, or a defender of broader societal needs? The answer, as with most legal issues, isn't black and white. Striking a balance between protecting individual rights and ensuring the legal system doesn't become a bureaucratic circus is key.