After graduating from law school in Mexico – and before turning to writing full-time – I practiced amparo law for three years. Before that, I interned at a corporate law firm but left it because the job felt detached from what I thought the practice of law should be: creating legal arguments to seek justice for individuals before a court of law.
And there was no greater legal mechanism for defending individuals from abuses of power than an amparo trial.
In Mexican law, an amparo is a course of legal action that defends citizens who have had their rights infringed upon by the government. For instance, if you get a flat tire from a pothole, you could file an amparo trial against the authorities responsible for maintaining the streets in good condition. If the municipality unjustifiably closes your coffee shop, you could claim legal protection against that decision through an amparo trial.
Since its creation in 1841, the amparo trial has been the balancing factor between citizens and the government. Its function within the legal system has helped reduce the asymmetry of power between the people and the state by submitting the authority’s actions to the scrutiny of a qualified judge.
However, if the new reform presented by President Claudia Sheinbaum moves forward in its written terms, the protective nature of amparo will be threatened at its core.
Since I haven’t practiced amparo for a few years, I spoke with former colleagues to hear what they have to say about it.
Magistrate Julia María del Carmen García González, who recently retired after serving for 15 years as a federal judge in an administrative court in Naucalpan de Juárez, qualified the new terms of the reform as a “clear setback” and a “pro-authority reform.”
“I practiced my career through the most protective era of human rights, and now I’m worried, frustrated and sad for what lies ahead,” she said.
Attorney at law and professor of amparo and constitutional procedural law at the Universidad Panamericana Guadalajara, Pablo Flores Guerrero, expressed concern that the new reform “sends a dangerous message to the new judges in the judicial system, treating the amparo figure as if it were an abusive tool that, with each favorable ruling, challenges the principles of good governance.”
The reform has been approved by the Senate and is currently under revision by the Chamber of Deputies.
Here are the most worrying proposed modifications.
The new law changes the definition of ‘legitimate interest,’ restricting access to amparo
Under the terms of the law approved by the Senate, access to amparo is restricted by changes in the definition of interés legítimo (legitimate interest), which “makes rigid a figure that should be dynamic,” Flores said.
To explain this, we need to take a quick look at how amparo works now.
According to the current amparo law, there are two channels through which a person can file an amparo lawsuit: through interés jurídico (legal interest) or interés legítimo (legitimate interest).
“Legal interest” means individuals can only go to court if a personal right is directly violated. For instance, if the government took away their property or fined them unfairly.
Meanwhile, “legitimate interest” (introduced in 2011) allows any person or group of people to go to court, even if the violation doesn’t affect them personally. For example, an environmental organization could file an amparo lawsuit against a project harming a protected natural area, even if the group doesn’t own the impacted plot of land.
See the article below to read more about a case of ‘legitimate interest’ amparo:
Supreme Court lifts suspension on bullfighting in Mexico City
However, the new proposed definition (which can be found on page 9 here) can be interpreted to mean that general concern or indirect damage to the population are no longer sufficient cause to file an amparo lawsuit.
“For many years, until the 2011 reform, only people with a legal interest were able to access amparo. But with the introduction of the legitimate interest [amparo], civil society organizations had the opportunity to seek protection,” Magistrate Del Carmen said. “Restricting it is a clear step backwards.”
Flores added that if interés legítimo is dismantled by the proposed changes, lawsuits seeking the protection of community rights (known as “collective amparos”) will also be negatively impacted. In addition, he said, “There is a highly probable risk that the admissibility of amparo claims will become even more problematic.”
The new law limits the application of a provisional suspension
One of the key benefits of an amparo trial is that it halts the allegedly abusive act of the government while the case is being resolved as a way to protect the complainant. This measure is known as “provisional suspension.” Let’s say the municipality closed down your coffee shop. While the case is being studied (which could take months or years), a provisional suspension would allow you to keep your coffee shop open in the meantime.
However, the proposed changes introduce new grounds to restrict its application in some cases. In other words, it expands the scenarios in which a provisional suspension will not proceed.
“The fact that you do not have access to provisional suspensions in these scenarios will allow the authority to continue acting in total detriment of your rights,” Magistrate Del Carmen said.
She said the following changes are the ones that cause the most concern:
In cases of arrest warrants
The new amparo reform does not allow provisional suspension in cases of pretrial detention, meaning that individuals will remain detained at the discretion of the amparo judge without a real possibility of regaining their freedom before being found innocent or guilty.
In cases of blocked bank accounts
The proposed terms eliminate the provisional suspension in cases of bank accounts that have been blocked by the Financial Intelligence Unit (UIF), which typically happens due to suspicions of money laundering.
However, if an account is frozen by mistake (for instance, due to a name mix-up) the affected person could be left without access to their money for months, or even years, while the legal process unfolds.
Retroactive application of the law
The amparo reform approved by the Senate included a controversial clause that allows its provisions to be applied retroactively, affecting cases already initiated under the current law.
This retroactive application has been widely criticized as it violates the Mexican Constitution, which prohibits the retroactive application of laws to the detriment of any person.
Magistrate Del Carmen said that if the reform were approved in these terms, it would violate the principle of legal certainty. This principle is paramount in any legal system, as it allows all individuals to know what they should expect from the law.
Upon learning of this clause, Sheinbaum rejected its inclusion and clarified that her original initiative did not include such a provision, calling on the Chamber of Deputies to eliminate it.
Are there any positive changes in the proposed reform?
Some experts have pointed out the benefit of introducing online trials in the proposed reform of Mexico’s amparo law. However, Magistrate Del Carmen considers this change to be irrelevant in the face of the other modifications.
“All else considered, the changes [to the law] are catastrophic,” Magistrate Del Carmen lamented.
For Flores, if the new amparo law is approved in the written terms, it will place even greater responsibility on lawyers, especially now that judges of the judicial branch have been selected by popular vote and have demonstrated “an evident lack of technical expertise in the issues on which they rule,” he said.
“The outlook is discouraging,” Flores acknowledged. “But this means that litigators carry a crucial duty to keep challenging cases with the technical rigor and quality standards that our country deserves.”
Gabriela Solis is a Mexican lawyer turned full-time writer. She was born and raised in Guadalajara and covers business, culture, lifestyle and travel for Mexico News Daily. You can follow her lifestyle blog Dunas y Palmeras.
