provision does not, in itself, guarantee its effective application. It is
necessary that the application of provisions or their interpretation, as
jurisdictional practices and expressions of the State’s public order, be
adapted to the objective pursued by Article 2 of the Convention. 91 In
practical terms, the interpretation of Article 13 of the Mexican Constitution
must be consistent with the constitutional and conventional principles of due
process and access to justice contained in Article 8(1) of the American
Convention and the relevant provisions of the Mexican Constitution.
(Underlining and highlighting added).
67.
In this sense, the judges or courts that carry out jurisdictional activities,
whether at the local or federal level, must necessarily exercise “diffuse
conventionality control” in order to ensure that their interpretations are in line with
the Inter-American corpus juris. In the event of absolute incompatibility between a
domestic provision and the conventional parameter, the former must be
disregarded so that the latter may prevail, in order to guarantee the effectiveness
of the right or freedom concerned. This also applies to local judges, in accordance
with Article 133 of the Mexican Political Constitution, which states that: 92
This Constitution, the laws of the Congress of the Union, and all Treaties
that are in accordance with it, entered into and to be entered into by the
President with the approval of the Senate, shall be the Supreme Law of the
entire Union. Judges in every State shall adhere to said Constitution, laws
and treaties, notwithstanding any contradictory provisions that may appear
in the Constitutions or laws of the States. (Underlining added).
68.
As is evident in the latter part of this constitutional provision, local judges
apply "the Supreme Law of the Union" (which includes international treaties) when
incompatibility exists with any other provision that does not form part of that
“Supreme Law”. This means that local jurisdiction judges should go as far as to
disregard any standards inconsistent with the provisions of the “constitutional
block." In other words, it is the Constitution itself that empowers the judges of
ordinary courts to exercise “diffuse constitutionality control” and therefore the
American Convention on Human Rights can provide a valid parameter for control,
not just the Constitution. Thus, as stated by the Inter-American Court, judges and
organs linked to the administration of justice “should exercise not only
constitutional control but also “conventionality control” ex officio between domestic
standards and the American Convention, obviously within the framework of their
competences and the corresponding procedural regulations.” 93
69.
The final part of this provision is of special significance for the degree of
intensity of “diffuse conventionality control” since judges must exercise it “within
the framework of their respective competences and the corresponding procedural
regulations.” As stated previously (See supra paras. 34 to 41), all judges must
91
Cf. Case of Castillo Petruzzi et al. v. Peru, supra note 72, para. 207; Case of Ximenes Lopes v.
Brazil, supra note 13, para. 83, and Case of Almonacid Arellano et al. v. Chile, supra note 13, para. 118.
92
This Article has only undergone one reform since the original text of 1917; this was in 1934, an
it was published in the Official Gazette of the Federation on January 18, of that year. The courts have
interpreted this concept and the Mexican doctrine in different ways, even in the Constitutions prior to
that of 1917. On the different interpretative positions, See Carpizo, Jorge, “La interpretación del articulo
133 constitucional”, [Interpretation of Article 133 of the Constitution] in Boletín Mexicano de Derecho
Comparado, Mexico [Mexican Bulletin of Comparative Law], IIJ-UNAM, núm. 4, 1969, pp. 3-32.
93
128.
Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru, supra note 15, para.
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