logo revista
Year 2 No. 5 May 2009

Evolution of the mexican electoral justice. José de Jesús Orozco

José de Jesús Orozco








José de Jesús Orozco Henríquez
Former Magistrate of the High Chamber
Electoral Tribunal of the Federal Judiciary in Mexico


CURRICULUM

Mexican.

He is a Licentiate in Law with Honors and Incumbent Researcher of the Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México (UNAM), and has a Master in Comparative Law from University of California, Los Angeles.  He was a Magistrate of the Superior Chamber of the Electoral Tribunal of the Judiciary of the Federation of Mexico from November 1996 to October 2006.


In general terms, it is possible to distinguish the following three relevant periods in the evolution of the Mexican electoral justice:

1. The Electoral Justice System predominantly administered by the legislature or a political assembly (1812-1977).

Since the Federal Constitution of 1824 (under the influence of the Constitution of Cadiz of 1812 and the Constitution of the United States of 1787), to the electoral reform of 1977 remained effective in Mexico - with some variants, the system of electoral justice administer by the legislature or politically, which had the faculty to decide on the validity of the respective election. This system was generally followed in the democratic regimes of the beginning of XIX Century and it is linked to the origin of the parliaments, following the English and French experience, which influenced, respectively, the North American and the Spanish, and consequently the Latin-American and in particular the Mexican.

The described system remained unchanged in our country during that period, with the exception of the ephemeral and peculiar experience of the Conservative Supreme Power - conceived as a fourth power of neutral character under the force of the Constitutional Laws of 1836 (according to which elections of deputies were certified by the Senate, whereas those of the senators were certified by the Conservative Supreme Power) and which appeared at the beginning of the last third of the the XIX Century when the federal courts began to develop the thesis of the "incompetence of origin", according to which the protection judge was not only authorized to analyze the constitutionality of the acts and the competence of the authority where they came from, but also the legitimacy of the designation or election of the authority. The adoption of this criterion, by which the federal courts of protection in control of the regularity of the elections were involved, was maintained until 1881, when it was abandoned by the Supreme Court, because they considered that the certification of the elections was a political and not an actionable issue. Such criterion was confirmed in the Constitution of 1917, while the Supreme Court maintained that the political rights were not susceptible of being safeguard through the protection of constitutional rights judgments, and therefore they were considered not actionable.

2. The Mixed Electoral Justice System under the competence of the judiciary, and of the legislature (1977-1996).

In 1977, within the framework of the Political Reform, coincident with the so call "Third democratic wave", Mexico adopted a late jurisdictional control on the legality of the elections, thus being incipient as it had already been predicted in the large majority of the democratic regimes, since it was established in England in 1868 in order to eradicate the abuses perpetrated by the majorities that eventually conformed the House of Commons, in the understanding that in countries that still keep an electoral process under the competence of a political organ (like the United States of America or Italy), for a long time had combined it with previous jurisdictional instruments in order to safeguard the fundamental right of access to the justice established in article 17 of the Constitution, as well as in article 14 of the International Pact of Civil and Political Rights, and article 8 of the American Convention on Human Rights.

This is how the reform of 1977 established recourse against the resolutions of the electoral college of Deputies before the Supreme Court of Justice of the Nation, whose "resolution" was sent to the Chamber of Deputies to issue the final and unappealable resolution. However, by reform of 1986 such recourse was rightly derogated in response to the criticism arisen from the scientific doctrine, which adduced that because the resolution issued by the Supreme Court, strictly, did not have a final character, such resource caused the Supreme Court to lose authority and unnecessarily risked its good name.

With better results, the still mixed contentious electoral system was adopted in 1986, through the Contentious Electoral Tribunal, and particularly from 1990 with the creation of the then Electoral Federal Tribunal, continuing the tendency observed in Latin America, in the understanding that the electoral college had the faculty to review and to modify the resolutions of the respective electoral court, with which a mixed jurisdictional and political electoral contentious system was adopted.

 

In 1993 the electoral colleges were suppressed from each of the chambers responsible for certifying the elections of their respective members, thus modifying the system of "self-certification" that Mexico adopted for almost 180 years, conferring the Federal Electoral Tribunal full faculties to be the higher instance to resolve the controversies on the matter, conferring to its resolutions obligatory and final effects, though the Chamber of Deputies kept the attribution to become an Electoral College in order to certify the presidential election.

 

3. Electoral Justice System completely Judicial (1996 to date).

 

The evolution ends with the adoption of a contentious electoral system completely judicial from 1996, entrusted to the Electoral Court of the Judicial Power of the Federation, the highest jurisdictional authority in the matter, except for the action of unconstitutionality against electoral laws under the competence of the Supreme Court of Justice of the Nation, whose resolutions are final and unappealable, just as it is in several Latin-American systems of electoral justice.

 

To the effect, the Superior Chamber of the Electoral Court is conferred the faculty to carry out, once all the impugnations interposed are resolved, the final counting of the presidential election, as well as to issue the declaration of validity of the election and of the elect president to the candidate who had obtained the higher number of votes, as it happened in the elections of 2000 that allowed the alternation in said position after seventy years of the then governing party, and in the 2006 election when the difference between the first and second place was 0.56%.

 

Likewise, definitive and unappealable effects are granted to the resolutions of the Electoral Court regarding the impugnations, whose objective is to guarantee that each and every one of the electoral acts are adjusted to the principles of constitutionality and legality, hence a completely judicial electoral contentious system was adopted. Likewise, just as the Superior Chamber of the Electoral Court had established it via jurisprudence, the 2007 reform emphasizes that the citizens who oppose the internal decisions of a party, before going to the Electoral Court, must have exhausted the internal instances of the political institute; besides, it is explicit that the chambers of the Electoral Court could no apply in concrete cases laws that are contrary to the Constitution, consequently the integral character of the Mexican system of electoral justice is emphasized.

 

Since 1996 it was established that the electoral magistrates will be chosen by the vote of two thirds of the present members of the Senate following a proposal by the Supreme Court of Justice of the Nation, while the law establishes that to the effect it will present a shortlist of candidates for each vacancy. The 2007 reform establishes that the reappointment of the magistrates will be staggered and their period will last nine years. While the Superior Chamber is integrated by seven magistrates, each one of the five regional chambers is comprise of three judges. As it is the case for the Superior Chamber since 1996, the reform of 2007 confers permanent character also to the regional chambers.

 

The evolution of the Mexican electoral justice has contributed to the transition from hegemonic political party to a system of political parties increasingly more plural, with competitive elections and the possibility of the alternation, as well as a guarantee that all the electoral acts and resolution of the authorities and the political parties adjust to the principles of legality and constitutionality in order to assure the celebration of authentic, just, and free elections.