Applying the principle of pro homine
This principle of pro homine or pro personae leaves the conventional interpretive theories of law behind and focuses instead on a simple rule: what precisely is the preferred application of the most favourable law that will benefit all individuals, regardless of their origin, their generality or specialty, or their national or international status.
As a result, the exclusive right of federal national judges to apply and interpret the law, previously given to them by the concentrated control written into the constitution, has given way to a more diffuse control that allows any judge to apply, analyse and interpret the law. Indeed, it is evident that a willingness to apply the law most favourable to individuals has actually materialised.
However, applying the law most favourable to individuals places a large responsibility on national judges, as those who tend to apply the law rather than interpret it are in danger, in this exercise of statutory interpretation, of making groundless and illegal decisions.
Therefore, when interpreting the law, it is important for such judges to support their decisions by taking into consideration the precedents set by the Federal Circuit Courts and the Mexican Supreme Court, as well as international courts.
Furthermore, from my particular point of view, they must be very careful when deciding those cases submitted for their consideration, which include allegedly novel theories that may even be against the law.
Another relevant aspect of the current constitutional reform is the protection of human rights, to such an extent that the Mexican Supreme Court has published on the website http://www2.scjn.gob.mx/red/constitucion/TI.html a list of international treaties in which human rights are recognised. One of these is the well-known Patent Cooperation Treaty.
"as those who tend to apply the law rather than interpret it are in danger, in this exercise of statutory interpretation, of making groundless and illegal decisions."
In a sense the obligation of judges to consider, without exception, the provisions of international treaties when deciding a particular dispute, makes the principle of pro homine or pro personae even more significant, especially if the individual uses rights contained in such international treaties in his or her defence.
Nevertheless, and despite the clear intention of these reforms, I believe that the exercise of the principle of pro homine or pro personae has been limited so far to the country’s judges and has not been extended to the administrative authorities at all levels of government.
This is because the administrative authorities are not currently obliged to comply even with the jurisprudence of the Federal Circuit Courts and the Mexican Supreme Court, much less to implement, analyse and interpret which laws are most beneficial to individuals.
From my point of view, this dilutes somewhat the principle of pro homine or pro personae as the purpose of this principle of law interpretation is not achieved until a judge is made aware of the case.
To make sure that judges are not the only ones responsible, the Inter-American Court of Human Rights resolved in the Vélez Loor v Panama case decided on November 23, 2010 and the Cabrera García y Montiel Flores v Mexico case decided on November 26, 2010 that judges should not be the only ones obliged to take the pro homine or pro personae principle into account.
Hence, I consider it essential that the administrative authorities of the country at all levels of government exercise without exception the principle of pro homine or pro personae when they issue their decisions because only in this way will individuals be provided, in reality and at all times, with the law’s broadest protection, thereby achieving the purpose of this constitutional reform.
Yuri Vázquez is attorney at law at Becerril, Coca & Becerril, SC. He can be contacted at: yvazquez@bcb.com.mx
