25
67.
In this sense, the judges or tribunals that materially realize judicial
activities, be it of local or federal jurisdiction, must necessarily exercise the
“diffused control of conformity with the Convention” in order to achieve the
interpretations that conform with the Inter-American corpus juris. In the case of
absolute incompatibility between the national norm and the conventional
parameter, it must be disapplied for those to prevail and thereby achieve the
realization of the right or freedom concerned. The foregoing applies as well to the
local judges, in conformity with the Political Constitution of the United Mexican
States, in its Article 133 in force, which states:93
This Constitution, the laws of Congress under it, and all the Treaties that are
in accordance therewith, entered into and to be held by the President with
Senate approval, will be the Supreme Law of the Union. Judges in every
State shall conform to the Constitution, laws and treaties, notwithstanding
any contradictory provisions that may appear in the Constitutions or laws of
the States. (Underlining added).
68.
As can be seen in the latter part of this constitutional provision, local judges
apply "the Supreme Law of the Union" (where the international treaties are found)
when there is incompatibility with some other standard that does not integrate this
"Supreme Law"; this implies that the local jurisdiction judges should go as far as to
disapply those standards inconsistent with the norm of the "constitutional block."
In other words, it is the Constitution which empowers the judges of ordinary courts
to exercise "the diffused control of constitutionality" and therefore the American
Convention on Human Rights can become a valid parameter control, not just the
Constitution. Thus, as it has been held by the I/A Court of H.R., judges and bodies
linked to the administration of justice “shall exercise not only constitutional control
but also of “control of conformity with the Convention” ex officio between the
domestic norms and the American Convention, apparently in the framework of their
powers and the corresponding procedural regulations.”94
69.
The last part of this provision is of special significance to the intensity of the
"diffused control of conformity with the Convention," since judges must exercise it
"under their respective powers and corresponding procedural regulations." As we
have discussed in advance (see supra paras. 34 to 41), all judges must carry out
the "control" and the intensity will be determined by the skills and procedural
regulations. In principle, all Mexican judges should part from the principle of
constitutionality and of conformity with the Convention of the national standard and
therefore a first step should always be to carry out the "interpretation" of the
national standard under the Constitution and the conventional parameters, which
means opting for the interpretation of the rule more favorable and of more
effective protection regarding the rights and freedoms under the principle pro
homine libertatis or favor libertatis provided for in Article 29 of the Pact of San
Jose, rejecting those interpretations of inconsistent or less protective reach, so
that, contrario sensu, when it involves the case of restrictions or limitations to
rights and freedoms, it should be the strictest interpretation for this limitation. And
only when possible conventional constitutional interpretation can not be achieved,
93
This Article has only gone through one reform of its original text of 1917, in the year 1934,
published in the Official Gazette of the Federation on January 18, of that year. The concept has been
interpreted in different manners by the tribunals and the Mexican doctrine during its time in force,
including in the Constitutions prior to the 1917. On the different interpretative stances, See Carpizo,
Jorge, “La interpretación del Article 133 constitucional”, [The interpretation of Article 133 of the
Constituiton] in Boletín Mexicano de Derecho Comparado, México [Mexican Bulletin of Comparative
Law], IIJ-UNAM, núm. 4, 1969, pp. 3-32.
94
128.
Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Perú, supra note 15, para.
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