Constitutional (Amparo) Proceeding against private entities or individuals?

Jun 10, 2013
Constitutional (Amparo) Proceeding against private entities or individuals?

Regardless of the foregoing, the Jurisprudence issued by the Supreme Court of Justice of the Nation in repeated occasions has sustained that joined with such characteristics, the entity or person that has the legal authority to issue or perform acts unilaterally, through which it affects the legal sphere of the governed without requiring the will or even against it bears the capacity of responsible authority for purposes of the amparo, that is, the one who exercises an above authority to subordination with the private entity or individual; such considerations are reasoned in the thesis under the title: “POTABLE WATER AND SEWERAGE SYSTEM OF LEÓN, GUANAJUATO. A RESPONSIBLE AUTHORITY FOR PURPOSES OF THE AMPARO PROCEEDING WHEN IT LIMITS OR SUSPENDS THE POTABLE WATER SERVICES DUE TO LACK OF PAYMENT OF THE RELATIVE RIGHTS.”, “FEDERAL ELECTRICITY COMMISSION, IS A RESPONSIBLE AUTHORITY FOR PURPOSES OF THE INDIRECT AMPARO, IF UPON RESOLVING A CLAIM FILED IN TERMS OF ARTICLE 42 OF THE REGULATION OF THE LAW OF PUBLIC SERVICE OF ELECTRIC ENERGY, IT DOES NOT PROCESS THE REMEDY ESTABLISHED BY ARTICLE 83 OF THE FEDERAL LAW OF ADMINISTRATIVE PROCEDURE.” AND “RESPONSIBLE AUTHORITY. UNIVERSIDAD AUTÓNOMA DE NUEVO LEÓN HAS THAT CAPACITY WHEN IT PREVENTS OR HINDERS A PRIVATE INDIVIDUAL TO OBTAIN THE CAPACITY OF STUDENT.” Among others.

Contrary to that, although it could seem that any entity that is part of the public administration –federal, state or municipal- performs acts of authority for amparo purposes, the Court has determined that there are acts carried out without these exercising an authority from above to subordination with the private entity or individual; such considerations are reasoned in the thesis under the heading: “AUTHORITY FOR THE AMPARO PROCEEDING PURPOSES. THE MINISTRY OF FINANCE OF THE GOVERNMENT OF THE STATE OF TAMAULIPAS IS NOT IN REGARDS TO THE OBLIGATION IMPOSED BY ARTICLE 118 OF THE LABOR LAW OF THE PUBLIC OFFICIALS OF THE STATE.”, and the different heading: “WORKERS FOR THE SERVICE OF THE JUDICIAL POWER OF THE STATE OF SAN LUIS POTOSÍ. THE OFFICIAL COMMUNICATION WHEREIN THE LOCAL JUDICIAL BOARD INFORMS THEM THE CONCLUSION OF THEIR APPOINTMENT DOES NOT CONSTITUTE AN ACT OF AUTHORITY FOR PURPOSES OF THE AMPARO.”

However, from the publication of the new and renewed Amparo Law regulatory of articles 103 and 107 of the Political Constitution of the United Mexican States on the past April 02, 2013, a serious of unknown has arisen around the topic of responsible authority for purposes of the amparo, that if indeed they were foreseen by both chambers of Congress of the Union during the legislative process of their creation, they were not resolved in such a manner that it would cause a legal certainty for the governed.

I will explain, since the Preliminary Recitals of February 15th, 2011 from the proposals with a Project of decree of the new Amparo Law, The Senators Jesús Murillo Karam, member of the Parliamentary Group of the Partido Revolucionario Institucional (Revolutionary Institutional Party) and Alejandro Zapata Perogordo, member of the Parliamentary Group of Partido Acción Nacional (National Action Party) of the LXI Legislature of the H. Congress of the Union, they proposed that article 5° of the new code shall read as follows:

“Article 5º. The parties in the amparo proceeding are:
(…)
II. The responsible authority, having such capacity, with independence from its formal nature, which dictates, orders, executes or tries to execute, the act that it creates, modifies or extinguishes legal situations unilaterally and mandatorily; or omits the act that if done would create, modify or extinguish such legal situations.The private entities or individuals could bear the capacity of responsible authority in the amparo proceeding when exercising public duties.”

This is, adding to the text of the new Law that the private entities or individuals could bear the capacity of responsible authorities was provided for the consideration of the

Congress of the Union, however, as resolved by the jurisprudence, only in the event of acting as authority.

The topic was discussed in both Chambers of the Congress of the Union: in the chamber of origin Senator Tomas Torres Mercado warned that it was a sensitive subject that it should be analyzed carefully, since the wording raised of article 5° cannot leave any place for interpretations that were criteria defined in 10 or 20 years.

In the same manner, in the House of Representative-the reviewing chamber- The Representative Julio César Moreno Rivera warned that the text proposed in the Project to be discussed did not indicated private entities or individuals as responsible authorities, but it only adds to the criteria that had been handled that the responsible authority is that entity that issues acts of authority, as he mentioned at that time; on its part the representative Zuleyma Huidobro González agreed in that also the private entities or individuals violate human rights, but she did not agree with the fact that the intention is limited when the text of the new article refers that only when they act exercising public duties, finally “…a private entity or individual who makes acts equivalent to those of the authority, which duties are determined in the law, is not a private entity, it is an authority, since the authority is not any other than the one determined by the law …” and proposed to delete such limitation from article 5°. Finally the Representative Francisco Agustín Arroyo Vieyra proposed to delete the part that mentions that private entities could be responsible for purposes of the amparo, with the purpose of avoiding confusions that would be resolved after through criteria by the Supreme Court of Justice of the Nation.

The truth is that with everything and the confusions noted in the legislative process of its creation, article 5° of the Amparo Law effective on April 03rd 2013 specifies: “For purposes of this Law, the private entities will have the capacity of responsible authority when doing acts equivalent to those of the authority, that affect the rights in terms of this section, and which duties are determined by a general norm.”

For such reasons it is transcendent to avoid making our judicial apparatus work unnecessarily, we should evidence that notwithstanding the wording of the Amparo Law has changed in such a manner that it seems that the governed may file amparos left and aright against private entities or individuals, the truth is that the amparo proceeding continues to be admissible only against that entity or person that has a legal authority to issue or to do acts in a unilaterally through which they affect the legal sphere of the affected without requiring its will or even against its will, that is, the one that exercises an above authority to subordination with the governed, as referred by the text of article 5°, the requirements in order for a private entity or individual to be in the capacity of responsible authority are the following:

  • When doing acts equivalent to those of an authority –unilateral -.
  • That affect human rights.
  • That their authorities are determined by a norm.

In other words, a private entity under the capacity of responsible authority will be the one that acting as such violates human rights through acts it creates, modify, extinguish or omit to carry out legal situations in unilaterally and mandatorily, as established by the jurisprudence. Therefore, we can conclude that the New Amparo Law captures the jurisprudence which the Supreme Court of Justice of the Nation has issued along the term of the previous law, however, if the wording of the same caused confusion including to the Legislative Organs themselves without any doubt it will cause confusion to the governed, for which the Federal Judicial Power has to work even more in explaining controversies that could have been avoid if the wording of such article was clearer in regards to its accomplishments.