In March 2009 the House of Representatives passed a reform in the area of ‘Protection Law’, which would add a bullet point to section VII, article 107 of the Mexican Constitution. (The reform is still to be approved by the Senate.)
The main changes would be:
1. All rulings against fiscal laws will affect the whole population when they are instigated by a collective / organized group, or in specific circumstances.
The ‘Relativity of Rulings’ (which comes under the scope of ‘Protection Law’) will be affected by the reform. It states:
“…A ruling will only protect particular individuals, and only relating to the specific complaint, without affecting any change in the law itself.
This principle limits the outcome of the ruling by the federal judge to the plaintiff. Any person who has not expressly been awarded protection can not benefit from the ruling, which makes this an unconstitutional act…”
We consider that the deletion of this principle will be of benefit to everyone.
However, we are not in agreement with the principle referred to below.
While the Federal Courts have resolved the unconstitutionality of various fiscal laws, the Treasury can continue charging taxes for those taxpayers who have not personally asked for constitutional protection:
2. “These rulings will be resolved by the Supreme Court. At least eight votes should be needed to declare a fiscal law unconstitutional, and in the case that this number of votes is not reached, the case will be rejected… “Any declaration of unconstitutionality which this addition refers to will not have retrospective effects.”
This contradicts the constitution, which in article 14 (‘Individual Guarantee’) states that “No law will have retrospective effects which damages someone”, but obviously laws which benefit someone can have retrospective effects.
If a fiscal law is declared unconstitutional, any charges already made under that law won’t be returned to the taxpayers.
This leads us to ask the question “Can a law be legal, even though it is unconstitutional?”