Mexico, where Supreme Court is against women rights

In common perception -exactly as in general theory of law- Supreme Courts should be “the rules of the game” watchdog, that means avoid that ordinary legislative act and laws could infringe costitutional rules and spirit, so to grant citizens freedom against majority and government power. Using a synecdoche, we can compare the Courts to “lex animata”: they are the only interpreter of Costitutional rules and the heepers of dreedoms and power balance in their countries; Consequently, their are “super partes” for definition, and this means that as collegial organ they trascend single judges opinions (and also the sum of them) becoming something similar to what was “Ideas world” in Plato phyiosophy: they have to value laws using justice and general principles as only measure units of their decisions.

Now ask ourselver what happens when Costitutional jurisdiction is on the hands of courts appointed by executive powers (and so without the balancement of compromise)? The first ansewr is “generally happens nothing”at first because almost all countries contemplate that term of office for supreme judges (when a term exist) and the Powers that appointed them are different, so to give an equilibrium due to alternance of ruling parties that appoint single judges. The system generally have good results also when is only one Power (for example the President, as in US) to choose jugde courts because the proposal have to face with both branch of legislative assemblies.

But sometimes this mechanism doesnt work, as is happening in Mexico nowadays. In this country, victim of a no-declared war between narcos, and suffering a progressive dissolution of social tissue and a growing of economic inequality and violence (also perpetrated by policemen), also civil rights are having an involution, as its happening with the law that depenalize abortion (with heavy restrictions).

In 2007 Mexican Parliament voted a law to depenalize abortion in a country that, as almost all South american Nations, is dominate by Catholic church, where Chile, Hicaragua and Haity dont allow people to abortion in any case, even if mother's life is in danger, while in others (Honduras, Guatemala, Venezuela, Perù and so on) rape is not a reason that depenalize abortion (sic), in an area where in the only Guatemala, between 1960 and 1996 there were more than 100.000 documented rapes and were in all central american countries (and not only) rape is a weapon to fight enemies band (the infamous “pandillas” and “maras” wars) attacking womens of enemies, or is used to overthrown women or simply to affirm male domination. IN all south american countries only Cuba, Suriname and French Guyana have a legislation that allows women to follow their will on responsible parenthood.

But for Catholic Church the mexincan law was a wounds and immediatly after the vote, local Bishops assembly asked to Vatican to excommunicate the politicians that promote and vote it. As a result, Pope spokesman, mr. Lombardi, affirmed that people who vote such kind of things excommunicate themselves and is better not to take holy communion in church, while, the immediate excommunication works for who helps women abortion (not matter if is to preserve their life, for fetus malformation or for rape) and for women (can. 1398, excommunication redemption can be given from single bishops and in main sanctuaries).

For years later, in that aradise with 36.000 people killed from 2006, with a federal State -Chihuahua- that in 2001 voted a law that punished more a rustler than a raper (3 years as predictable minimum for rape, excluding extenuatings) and in wich capital Ciudad Juarez more than 1.000 women were killed in terrible way from 1993 (and only 430 bodies, or part of them, were discovered...) and the violences numer in uncountables, the interest of Supreme Court is again on abortion... to avoid it asiding law. In fact the nwe president appointed a new ultraconservative judge at Supreme Court with the result that in any civil right law the court vote as a parliamentar majority:8 against 7, to stop it and now their voting in favour of single states laws that avoid again abortion in any case. Now is possible to follow federal law that grant the right only in Mexico City district.

So the paradox of jurisdiction is this: 1) there is a federal law that grant the right that is not in contrast with mexican constitutional general principles, and so cannot be quashed by Courts.
2) Catholic groups boicott it in single state legilation 3) the caourt, politically inspired, cannot quash the federal law because is constitutional, but cannot allo people to the right for political and religious behaviours, and so dont quash the single state laws against federal law, but is impossible that in the same time can exist a law that allow a right and another that punish it, both judged by the same Supreme Court.

Now the question is what is the credibility of a Supreme court that act following singles judges behaviours? How is possibile that a secular court can make a decision based on metaphisycal ideas as that of soul and catholic behaviours about the moment of “creation” of a soul?UNfortunatly this is a problem not only in mexico, but there is a contagion also in countries that seemed safe, as in Hungary where the preambolous of new Costitution could modify hardly the rights of citizens, submitting them to a religious-oriented control, made by local Supreme Court that should use as parametre the preambolous itself that is inpired to catholic doctrine and in deeply contrast with UE general laws

Natural law and "positive secularism": risks and misunderstandings

In a vision leaded by the vision of human history as "an unstoppable path" to the extension of rights and progress both social and economic is common the tendence to see "natural rights" (in latin "Ius Naturae") to as the postulates of Freedom in broad sense, which may be denied or distorted in practical application by governments in certain historical parenthesis but mantain their validity for moral issues at the same.

So, even when the "positive law" does not recognize them, they do not loose their value as paradigm of "pre-political issues", but are simply "hidden "in the current regulatory system, which can denie their validity in legislation and in court decisions but cannot exclude them fomr the moral common sense because their are logically preordered to positive laws and live on a different level than the legal do: that of moral or ethical common feeling.

So we could compare them to the guardian angels of freedom and dignity even in historical dark moments, are there, maybe only in the form of "wisps" that illuminate human consciousness, ready to return to be present rules as far as historical contingencies that denied them dissolve.

This could make us decline this category of "natural rights" in the individual natural rights of every man, as developed in centuries from philosophers and, in essence, joining three categories: the equal dignity of men (who carries forms of redistribution and social support necessary to maintain the balanced social tissue), civil rights (the rights of freedom, both positive and negative) and universal political rights, who are the only one to be limited in doctrine not by other freedom but by general rules of collective structure.

But what happens when the "natural law" become an ensamble of determinations that exist before "political determinations", ie where it is considered that there is an order of things (or divine nature of socio-economic) objectively and equally valid regardless of the choices of individual? A sort of "matrix" of perfect rules (obviously with religious connotation) that secular legislation to be moral have to follow. This represent a complete changing of common perspective in ""Natural law": from a corpus of rights that resist to abuse of laws and majority become an order to follow indipendently by single men choices, an order decided by clergymen and "faithful legislators".

This question may seem specious on the surface, but is exactly what the so-called "positive secularism" doctrine is trying to do, "rationalizing faith" (and so giving to faith an autoevident and rational base to follow for all, believers and no) and creating in secular legislation a corpus of "principles are not reviewable" for faithful persons and legislators, placing so democracies under the "protection" of moral issues interpeters, that this will become the real arbiters of common sense.

With the "positive secularism" the moral sense become parameter of legislative power, and the natural law becomes a perfect "imago" of what social order should be, so even if some laws following democratic choices can be (for now) far from this ideal, in this view this mean a degeneration from the high road of collective welfare (which coincides with the representation of the natural order as wanted by clergyment and followers) and then this vision actually gets into the public sphere of the determinations the concept of sin ad synonimous of wrong (to God eyes) law.

So, to illustrate, although a majority of citizens would legalize recognition of same-sex unions, that would be contrary to natural law (in christian vision) that sees men and women separate and complementary and thereforethis law would be immoral to the members of faiths that oppose this view; not wrong, but immoral and this is the focus point, because a wrong law can be changed by a majority following democratic rules, but an immoral law is an usurpation of God "potestas" and so a such law in "positive secularism" vision do not exist, and have not to be changed only, but not to apply. Thus, individual rights, when they do not fit in magisteria religious hegemony or at least the majority, would be downgraded to simple desires, and then denied, no matter what the force of these ideas in public opinion. Simply the faithful legislators shouldnt dollow the desire of their people but the determination of moral authority.

This attitude is emerging in the western world (and not only) but at the same time (fortunatly) is still fragile, as it continues to masquerade under the misunderstanding of words that means the opposite and to succeed requires further reductions in the areas of autonomy of both political and electoral decisions and at the same time an increasing in the spheres of need and fear, which leads people to depend on the goodwill of others (or government) and so to abdicate its role in the social construction of equal and inalienable rights to become supporting actors and accept the role that powerful decision makers and rank them in "order of nature" (ie in the social structure).