Referring to the constitutional controversy promoted by the Attorney General’s Office (FGR) against the mandate of the Electoral Court of the Judicial Power of the Federation (TEPJF), which consisted in ordering the delivery of information related to an investigation folder in process, the penalist Roberto de la Garza celebrated the decision of the head of the agency, Alejandro Gertz Manero.
For the criminal lawyer, this was a clear message when he said “Enough of Law being held hostage by politics. Law must always be the channel of resistance and, on the other hand, it seems that today it is an obstacle to it”, he said.
Roberto de la Garza said he was not unaware of the political circumstances that Mexico is going through and the valuable role that, in this context, the National Electoral Institute (INE) and the TEPJF have assumed. “The end does not justify the means, and even less so, when the latter are detrimental to all Mexicans,” said the jurist.
“There are various reasons by virtue of which, in my opinion, the Superior Chamber of the Electoral Court erred and, presumably, due to political inertia that will unfairly harm, not only Pío López Obrador, but all the people who hold the quality of defendants in investigation folders that are of interest to an autonomous body whose very genesis and conformation reveals its porosity, ”said the criminal expert.
He explained that the fundamental premise of his position is article 41, section V, section B, of the Federal Constitution, which expressly establishes that the powers of the General Council of the INE will not be limited by banking, fiduciary and fiscal secrecy.
“Teleologically, we must give the importance it deserves to the fact that it was the Permanent Constituent Assembly itself who removed the ministerial secret from the limited list referred to in the Supreme Law. If it was the legislator himself who made the distinction, distinguishing is an inescapable obligation for the interpreter of the norm”, he explained.
Roberto de la Garza also pointed out that in accordance with this spirit and the provisions set forth in secondary laws, it is logical that the legislator has excluded ministerial secrecy and it is precisely derived from the function that has been constitutionally attributed to the Public Ministry. “Revealing information from a pending investigation folder not only means putting the success of the investigation at risk, but could result in a violation of the fundamental rights of the accused, not only the presumption of innocence as a rule of treatment, but also to due legal process and also to the fundamental right to privacy.”
The partner of the De la Garza-Carbonell office mentioned that the INE is an autonomous body in whose integration the legislative power, political parties and citizens participate, so, in this sense, revealing the information of an ongoing investigation folder to Said organism could even result in the absurdity that the representatives of the political parties know, before the accused, of the accusation and the evidence that supports it.
“Hence, the constitutional controversy promoted by the FGR, is established as the legitimate defense of the constitutional mandate that has been conferred on it, as well as in the due defense of the fundamental rights of any person to whom one day it is attributed the character of accused in a criminal investigation”, concluded Roberto de la Garza.
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