Aristegui v. Mexico: freedom of expression or offense against the judiciary?

 In amparo, human rights, international conflicts, state

As an introduction, is important to provide the reader with a context. Enrique Peña Nieto become President of the United Mexican States after an intensive media campaign, which had many subjective implications that in a certain way can also be objectively measured: the big publicity contracts with those media companies that pushed him to power and with some of its personnel, in many cases, are public. Hence, this campaign made the people, truly or falsely, to even believe that the marriage between Angélica Rivera Hurtado (a top soap opera actress in a world-class, globally-known, Mexican soap operas’ industry) and Enrique Peña Nieto, was solely media arranged and false. Though, it is not our job to provide the reader with elements in favour or against what could be or not a hoax. Nevertheless, there is also abundant information published by the investigative journalist María del Carmen Aristegui Flores and her team, that for many people may validly amount personal public attacks, perpetrate against this marriage and family. Whereas we have no objective elements to judge if some of that information was publicly relevant beyond gossip media, or not, especially since there is no link between the family of the president and the Constitution of Mexico; altho that, as far as we know, to the day, what pretended to be a certain type of accusations, have no objective basis, like for instance a persecution, or, specifically, a condemn of a misdoing attributed to any of the members of the so-called presidential family. Still, is true they do get protection, even against their will, from the respective authorities, and that, at the minimum, they do indirectly use state-resources. The core issue is, however, that this particular case could signify the beginning of the decline, at least in regard to popularity and public perception, not just of Angélica Rivera’s career and their family’s reputation, but of Peña Nieto’s six-year term as chief of the executive power. Furthermore, being Carmen Aristegui one of the most well-known and respected Mexican journalists, with international recognition, followed by the high-impact campaign deployed for the purpose of pointing out what in her perception was a collusion between the judicial public servants, the government and the company with which she had a contract, who, in her perspective, all plotted to act against her and her team, as vengeance for the publication of an investigation concerning a property of Angélica Rivera, colloquially known as the white house; due to it, that campaign that for example generated artistic expressions and provided her and her team with awards and victimized them and martyrized their radio show, for supposedly being unfairly fired and the contract unjustly terminated; that campaign, also signified a huge and persistent hole in the legitimacy and the credibility of the Mexican judicial system, which is validly argumentable that even indirectly affected the perception of the Mexican Supreme Court, exacerbating the social classes division, making attractive the popular clamour for what appears to be a populist punishment and an attack to the judicial independence, that has as its visible mask, as the tip of the iceberg, the pretended abrupt reduction in the judicial authorities’ salaries, which, if finally occurs, may impact not just the quality, but the perception the judicature’s employees have of themselves and of the institution, and also, in such a case, the image and respect they have for their superiors, not to mention the enormous loss of the judiciary in its moral capital.

It is also important to indicate that the forthcoming reasonings and arguments, since most of the campaign’s cornerstone and legitimacy is based in a petition for supposed human rights violations; because of it, is important to mark that these elements were also sent to the Inter-American Commission on Human Rights in the form of an amicus curiae, with the intention of nourishing its criteria when deciding if Mexico directly violated Carmen Aristegui’s human rights, by imposing both a freedom of expression (freedom of thought and expression) and a judicial (right to a fair trial and right to judicial protection) censorships, or, otherwise, if the state, by omission, as will be seen, indeed violated, but other persons’ human rights.

We will like to complete this exordium by pointing out that the full text in Spanish language of the alluded amicus curiae can be found in this link: https://magnacartalex.com/en/blog/caso-aristegui-defensa-a-la-libertad-de-expresion-o-una-felonia-en-contra-la-justicia-federal-mexicana-2/

Being this said, it is relevant to start by explaining that Carmen Aristegui sued the company Stereorey México, Sociedad Anónima (MVS Radio), for supposedly violating her human rights, acting the mentioned company, in her perception, as an authority. She did it through an amparo, which is a Mexican legal process employed for the summary vindication of any constitutional guarantee or human right recognized by the Constitution of Mexico or by any applicable international treaty, that in the present case had the primal objective of solving a controversy between aparent acts of a supposed private authority whose functions allegedly were established in the law. The amparo, similar to the writ of habeas corpus, is also extended to any constitutional guarantee or human right recognized in Mexico, and since in the present case the ostensibly authority was being sued for acts, the effect, if it was possible to be successful, would have been, in essence, to take back in time the things as were before the contract was terminated.

After the amparo, in a quasi-automatic and regular procedure, because of its pro-humanistic nature and its rigid legal deadline, as regularly happens with similar or analogical cases; after was admitted, and notwithstanding that the federal district judge, who even co-authored a book in the subject, in the subsequent phases under his jurisdiction, went beyond of what was validly correct, thence generated for Carmen Aristegui, rights she did not have before the amparo was submitted; albeit that, MVS Radio appealed, before a federal collegiate circuit court, through what is known as a queja (complain) resource, the admission of the amparo, unanimously being solved by the three magistrates, that the amparo shall be rejected, because it was clear and beyond any doubt, that in that hypothesis, MVS Radio cannot be consider an authority that was violating human rights, since it was a dispute between private persons, regarding their contractual relationship, what was beyond the nature of the amparo, moreover since the pretended authority was indeed a private company, for which the possibility of being considered an authority, was just added in the new amparo legislation, and there was not just an absence of a precedent in the matter, but the act of terminating a contract does not imply a function established in the law, as was imperative for the amparo to be admitted, especially since as a superior court they did had the possibility to deeply enough study the matter, in order to have the clear certainty that there was no possibility for a different outcome whatsoever.

Although the federal district judge, in a substantive ultra vires, utilized the amparo as an instrument to effect acts that were contrary to the law or to legitimize factual situations outside of it, yet confusing the public opinion; regardless that through the actions under his jurisdiction he generated rights Carmen Aristegui did not have before her plaint, and in spite of the book he wrote pretending to defend those actions; howbeit all this, those rights always failed to exist, so the most relevant problem arose when she, we know not why, since the Inter-American Commission on Human Rights rarely give voice to regular people, with palpable, tangible, verifiable, much clear human rights violations against themselves; the real problem emerged thence, when she, as a colophon or climax of a disinformation campaign, in that tune, stated in front of such supranational institution, that “There was once a white house…”, implying the state censored her, not just in her freedom of thought and expression, but, because of the same motivations, in her judicial rights.

In a nutshell, the resolution of the queja resource that rejected her amparo, should have had the opposite result, hence admitting the amparo, to be possible for it to have been sustained in political, perception and/or media reasons; otherwise, as it was, the rejection is solely sustained in juridical, valid arguments, and in the law and the logic. Contrarily to it, not just the conception of the amparo, in specific of the authority for that purpose, should have been altered, but the amparo should have been admitted based in an act of authority, that failed to be not just of authority, but, as we will explain, act at all. Not to mention that this, admitting Carmen Aristegui’s amparo, will not solely be arbitrary against a private company that was not an authority and that perpetrated no act, but will also have had, for that same causes, criminal and/or administrative implications in the lives and careers of those three federal magistrates of circuit, who, despite the public opinion, truly acted in accordance with the law.

Subsequently, after the amparo was rejected for legal and valid reasons, it was abusive to start or continue a campaign, implying the state censored her freedom of thought and expression and her judicial rights, thereupon publishing books, magazine articles, news, newspaper articles, receiving international recognitions, etcetera, echoing, in order to persist getting moral capital dividends, the notion of the amparo being rejected for her and her team publishing the white house investigation, which, symmetrically to that campaign, implies the Mexican state, not to mention the loss it additionally had in its own moral capital; in that same proportion, implies that by omission Mexico violated the human rights of the involved persons, in specific those three magistrates and who supposedly colluded with them, disregarding that by acting elseways, as pointed, will have even signified criminal and/or administrative hypothesis for those judicial public servants.

Under Mexican constitutional law, the resolution that rejected the amparo, is logically valid, fair and based in the quintessential fundaments of that legal process employed for the summary vindication of any constitutional guarantee or human right recognized by the Constitution of Mexico or by any applicable international treaty, hence being undoubtable and manifest the reasons for its rejection, since it was absolutely unambiguous, because it was evident and completely clear, just by reading or observing the petition, that it resulted substantial and notoriously invalid, and that its invalidity was totally certain for the purpose of generating full belief of it in the three federal circuit magistrates, therefore, even if the amparo was admitted, notwithstanding the elements the parts could have provided, it would have been impossible to later arrive to another conclusion.

The amparo’s objective is to protect the persons from arbitrary acts perpetrated by authorities, that, through applying general norms, thus subordinating them without the need of the intervention of a judge, violate their human rights or their constitutional guarantees. In compliance with this idea, is relevant to mention that the amparo does not proceed in those hypotheses where even the state itself is acting as a particular party.

In Carmen Aristegui’s case, not to mention that the issues regarding the broadcasting and telecommunications concessions, the content and the audiences, are competence of the Federal Telecommunications Institute, and need to be solved by federal judges specialized in broadcasting and telecommunications, then being incompetent the federal district judge, who, just for that reason, it can be said he incorrectly admitted the amparo; in the case at study, the barely alluded elements, failed to exist, that is, the termination of the contract was based in substantial, not repairable, violations to it, since one of the contracting parties thought the other incorrectly used its intellectual and industrial property, not being either authorized to use some of its copy rights, brands, personnel, goods, etcetera, publicly stating false and incorrect positionings, and acting in name of it without its recognition, plus not respecting the confidentiality contained in the contract itself; all of which needed to be assessed by a judge or agreed by the parts to have full effects, thus rooted in a bilateral and horizontal relationship between private parties, not in an unilateral and vertical imperative authority act done in accordance with the law. Plus, the new corporate criteria that perhaps was consequence of this breach of the contract, was never applied to Carmen Aristegui, since the agreement with her was terminated one day before the new criteria was, in such a case, even applied, id est, before that signalized act even occur, ergo before it was, not to say if of an authority or not, but an act at all.

Consequently, the pointed out no-act, not even in the universe of the assumptions, will ever aspire to affect her legal sphere of rights, thus being false, deceitful and misleading against the judiciary, the clamour in the sense that the amparo was not admitted based in a judicial censorship or a complot or a collusion against her from part of the state, for, in any form, exercising her right to freedom of thought and expression, not being, as presumed, the judicial power subordinated and dependant of the executive; paradoxically, overlooking the media pressure and the public perception that was palpable, and that, alas, in detriment of the judicial system’s moral capital, evidently generated juicy rating dividends for the journalist; antithetically to the campaign, those three federal magistrates of circuit acted solely subordinated to the law and to the Constitutional Order.

After the case has been studied under the Mexican constitutional law, we are urged to express if there is a violation to Carmen Aristegui’s freedom of thought and expression and/or to her right to a fair trial and/or to her right to judicial protection, perpetrated by the Mexican state, as she alleged before the selective Inter-American Commission on Human Rights, when, followed by an intense campaign that included books, and articles, and diverse expressions, etcetera, at least implied her amparo was rejected because “There was once a white house…”, what allegedly was exposed by her and her team in the journalistic investigation titled La casa blanca de Peña Nieto (Peña Nieto’s white house).

It is important to start by mentioning that the existence of the white house was made public in the social-life magazine ¡Hola! México by her pretended owner, Angélica Rivera Hurtado, before Carmen Aristegui’s journalistic investigation occurred. So, to start, despite possible lawless or corruption implications, objectively, never was Peña Nieto’s white house, but, in such a case, Rivera Hurtado’s white house.

Also, is important to mention that the contract between Stereorey México, Sociedad Anónima, and María del Carmen Aristegui Flores, was legally declared as terminated by a federal district judge. And that if it was possible to ask for an amparo, alleging violations to the freedom of thought and expression, every time a media company or a broadcasting or a telecommunications concessionaire terminated a contract, then all employment, civil or business contracts, notwithstanding its nature, will be useless, denaturalizing the nature of the amparo as a constitutional legal process for protecting the human rights and the constitutional guarantees of the persons, from the arbitrary authorities’ acts, moreover if the telecommunications legislation is not ordinarily applied in such terminations. Adding that the broadcasting and telecommunications concessionaires are companies that have existence before the law, with statutes, legal representatives, shareholders, with willingness to grow, to have its corporate image, to have its specific audiences, its policies, its protocols, etcetera, being the concession and its normativity, a juridical reality, originally rooted in the Constitution of Mexico, between the companies and the state, who can limit the freedom of expression in the benefit of the general interest and of the honour of the persons and the institutions, not de facto realities, since those concessionaires are using a good whose original owner is the nation, and therefore, through it, are generating a decisive influence in all aspects of the country.

Plus, we must consider that the concession, although it does not form part of the patrimony of the concessionaire company, which acts as collaborator of the public power in relation to the authorized good or service; although it, the concession is indeed an agreement between the state and the concessionaire, that cannot be discretionally modified, with its particular normativity in pro of the development of the nation and of the state, permitting the concessionaire company to defend its legitimate interests, thus if there were basis to belief Carmen Aristegui was affecting those interests, it was justified that the contract was resigned, what was even uphold by the judicial authorities, that legally declared its termination without none of the parts needing to pay an economic compensation or other type of obligation to the other party; not existing then, limits to the contractual liberty, besides those established in the laws and in the concession itself, that is an agreement between the state and the company, not between the state and the journalists, thence being inapplicable to the particular facts, for instance, cases like Palamara Iribarne v. Chile, solved by the Inter-American Court of Human Rights, because the state did not interfere in that contract termination, did not do either administrative revisions, or criminally persecuted her or her team, or censored their voices, not even legitimated in the general interest, protecting the honour of other persons and institutions.

Emerging important to reiterate that the reasons for the termination of the contract, were not for publishing the journalistic investigation La casa blanca de Peña Nieto, nor for alluding the coverage of the magazine ¡Hola! México titled Angélica Rivera la primera dama, en la intimida, nor for retransmitting or quoting the interview voluntarily given by her to that magazine; all even is logic to conclude just by the title of the journalistic investigation, an apparent visible bias, since the “white house” that “there was once”, was a property objectively attributed to Angélica Rivera Hurtado, not to Enrique Peña Nieto, what would in itself have legitimated the termination of the contract, since it was an affront to some persons’ and some institutions’ honour and/or reputation, which, since concessionaire companies like MVS Radio are using a good whose original owner is the nation, thus generating a decisive influence in all aspects of the country; thereupon, for the sake of that justifications, their concessions are not absolute or limitless, especially since it has been ruled by the highest Mexican courts, that a correct regulation and supervision of the media is necessary for the equilibrium between the people’s necessities and the responsibilities of the state like their human rights guardian.

As stated, these arguments were submitted to the Inter-American Commission on Human Rights in the form of an amicus curiae, with the intention of nourishing its criteria in the petition made by the journalist María del Carmen Aristegui Flores, who even, in a public audience, as is exceptional to most of the people, exposed those facts before that supranational institution; all because we think is valid to sustain that the Mexican state, as a result of being incapable to generate confidence in its executive and judicial branches, by, when possible, opposing or informing through the respective legal, public relations, press, institutional or diplomatic channels, to those who, nationally or internationally, were misinformed; due to this incapacity to explain the truth, by omission, is valid to affirm that the Mexican state is responsible for the violation of the human rights to, amongst others, the honour, to the information, to the reputation, to the name, to the prestige, to the impartiality presumption, to the decorum, to the freedom of profession, to the free enterprise, of the persons and magistrates, María Elena Rosas López, Pablo Domínguez Peregrina and Marco Antonio Bello Sánchez, as well as the case may be, of Angélica Rivera Hurtado, Enrique Peña Nieto, and the shareholders and personnel of Stereorey México, Sociedad Anónima, since, in detriment of the moral capital of the Mexican judicial system and the state, it was apparently inferred and publicized through an intensive national and international campaign, which included the publication of abundant journalistic, entertainment, social, literary, as well as legal, books and articles, what assuredly conduced and generated the false perception that, at least these persons, plotted a complot to violate Carmen Aristegui’s human rights, by obstructing her right to a fair trial and her right to judicial protection, by cause of, in any form, the exercise of her right to freedom of thought and expression, when, as is the case, an amparo with the above mentioned and the above studied characteristics, was rejected, pretending therefore, to win in the media and in the public perception and opinion, what was not possible to happen in the courts; and what, antipodally, if it did materialized, will not only have been unfair with a company that was no authority, perpetrated no act and applied no law, but, on the same basis, if occurred, could have signified administrative or criminal responsibilities for the referred federal circuit magistrates, impacting their liberties and their careers as judicial public servants.

The aforesaid got beyond any possible doubt when Carmen Aristegui in that same unusual audience, in her claim for the Mexican state to be condemned for her human rights violations, said that “… under pressure or in collusion of the political regime…”, her rights to a fair trial and to judicial protection, were violated through a “… judicial trickery…” with the purpose of “… obstructing the justice…”, all because of her, in any form, exercise of the right to freedom of thought and expression; when, as has been validly argued, her amparo was not admitted for being legally incapable of bearing fruit or producing anything, since its core plea was originated by an act of authority, which was not, nor could it even aspire to be, at least, an act, being annihilated only by what was stated in her petition, that was substantially and notoriously inadmissible.

With the foregoing elements at disposal, the question for the learned reader must be: is this case a defence to the right to freedom of thought and expression of an investigative journalist critic to the Mexican government or is it an offense against the Mexican judicial system?

Nota bene: this case is different from other case where the contract between the company MVS Radio and Carmen Aristegui was terminated, precisely for not being in the hypothesis of an act of authority perpetrated by the state, id est, by a supposed private authority whose functions allegedly were established in the law; but, a sensu contrario, therefore, an agreement amongst particulars; notwithstanding if that bargain was legally or illegally terminated, thus, if there was a compensation, indemnification, reparation or consequence whatsoever. For the same reasons, those comments for which the journalist was sued, were narrowed to that covenant between particular parties, and, thence, have no logical impact within the campaign displayed, where in a yet unusual audience before the Inter-American Commission on Human Rights, she stated, as hereunto has been exposed, that “… under pressure or in collusion of the political regime…”, her rights to a fair trial and to judicial protection, were violated through a “… judicial trickery…” with the purpose of “… obstructing the justice…”, all because of her, in any form, exercise of the right to freedom of thought and expression; when, au contraire, as has been validly argued, her amparo was substantially and notoriously not suitable to be admitted for being legally incapable of bearing fruit or producing anything, since its core plea was originated in no act at all (therefrom is definitive that the so-called new corporate criteria, still in the surmise that such restrictions to the agreement between the state and the concessionaire were valid (as for example a sports program becoming the news or vice versa); that criteria was never applied to her amid utilizing the broadcasting concession (indeed a settlement between the state and the company, not between the state and the journalist, for the purpose of using a good whose original owner is the nation); not being, thusly, ex hypothesi, logically possible for her human rights for freedom of thought and expression to have been restricted, less for her human rights to a fair trial and to judicial protection to have been obstructed).

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