There are various judicial precedents which oblige courts (of whatever nature) to respect the principles of maximum publicity
By Gerardo Cortinas Mura
Secretly: adjective. Secret, covert action and especially done or said secretly for fear of or to avoid the law (RAE)
Chihuahua – Yesterday, in my capacity as a complainant in the political trial against former governor Javier Corral, I presented to the Jurisdiction Commission (CJ) of the State Congress a petition for the CJ himself to declare the session held last August 1 invalid; because said session was held in private session mode; and also because some MPs who are members of the said CJ appeared via digital link.
Indeed, on Monday night, various digital media outlets informed the public opinion in Chihuahua that CJ’s session was private (secret). As well as that some of its members have participated in the virtual modality; that is, they were not present.
For this reason, in order that the readers of the TRUTH may have a clearer and more accurate assessment of this petition, I must point out that section 45 of the Political Process Act establishes that in matters of political process it is applicable in addition, The Civil Procedure Code. The legal basis of the stated INCIDENT FOR INVALIDITY OF ACTIONS is based on the following legal provisions
ORGANIC LAW OF LEGISLATURE:
ART. 103. Committee meetings are public, but closed meetings may also be held depending on the nature of the issues discussed.
CODE OF CIVIL PROCEDURE:
ARTICLE 86. Actions and notifications will be void when the former lack any of the essential formalities in such a way that the omission leaves one of the parties defenseless, and when the law expressly provides for this; the second, when they are carried out in a way other than that prohibited in this code.
ARTICLE 98. The hearings shall be public and shall be presided over by the judge himself, under penalty of invalidity, unless in his or her discretion, at the request of a party and according to the nature of the matter, it warrants that they should be in person. They will be developed verbally by those who intervene or participate in it.
ARTICLE 104. In order to create confidence, the hearings are recorded electronically or by any other appropriate means at the discretion of the judge, which allows to guarantee the fidelity and integrity of the information, the preservation and reproduction of its content and access to them that according to the law have right to that.
Similarly, there are various judicial precedents which oblige jurisdictional bodies (whatever their nature) to observe the principles of maximum publicity and immediacy; among which the following are cited:
Article 6, Section A, Section I of the Political Constitution of the United Mexican States provides for the principle of maximum disclosure of public information, and the General Law of Transparency and Access to Public Information guarantees the right of access to information held by any authority… for the validity at the hearings in which they deliver their verdicts, it will be essential:
- The presence of the three magistrates or the secretary, who compensates for the temporary or permanent absence of any of them;
- The meeting should be public (except in exceptional cases specified in the law);
- To be transmitted electronically.
…by which the above legislation eliminates all opacity in the relevant inquiry and deliberation and guarantees the issuance of an impartial verdict; Further, by requiring the session to be in public, the possibility arises that the parties, or any person governed, may be present on the day and hour at which it is to be held, and be present during the debate; Otherwise, the higher objective of making the debate generated in the sessions transparent and public would be defeated.
In accordance with this operative logic, Article 20, Section A, Section II of the current political constitution of the United Mexican States provides that “every hearing shall be held in the presence of the judge”, implying that the principle of Immediacy in this aspect has to purpose: to guarantee the formal correctness of the process and to ensure due respect for the rights of the parties by guaranteeing the presence of the judge in the judicial proceedings, as well as avoiding one of the most common practices that led to the exhaustion of the traditional criminal procedure, where most of the hearings were not presided over by a judge, but rather their conduct was delegated to the court clerk, and in the same proportion the presentation and evaluation of evidence was also delegated .
Next, the factual circumstance that the SC met behind closed doors and some of its members participated virtually, fully proves that last Monday’s meeting was illegal, by virtue of the fact that it was held underground; and without the physical appearance of all its members.
The principles of maximum publicity and immediacy which govern civil proceedings were therefore violated and therefore left the applicant in a state of complete defenselessness, as he was prevented – materially and legally – from having direct and immediate access to the settlement approved in said court action.
Finally, it is appropriate to clarify to the readers of the TRUTH that although it is true that the SJ is substantively an administrative body; it is also true that in the process of political processes it acquires the quality of a formal jurisdictional body.
For this reason, the CJ is required to strictly observe the procedural rules established in the Code of Civil Procedure; as otherwise either party could claim repeated infringement at the start of due process.