Economic and social inequalities are considered one of the greatest challenges in society. The injustices prevent marginalized groups to be heard, exercise their rights, and have the same opportunities as others, which causes social disparity and the undermining of the public order. In the legal environment, inequalities are reflected in the lack of access to justice for vulnerable and low-income groups, a circumstance that is frequently left unresolved.
With the common good in mind, the legal industry provides a position of knowledge, enabling representation and providing effective legal assistance to the public. Which is why to face the issue at hand, the intervention of legal experts is essential. It is only them who will recognize their commitment to society and will contribute to a fairer and more equal system, implementing what is currently known as the provision of pro-bono legal services.
Pro-bono, of Latin origin, means “for the public good”, or in other words, conducts in benefit of society. According to the Declaration of Pro-bono Work for the American Continent, created by lawyers from Latin America and the United States, doing pro-bono work refers to:
“[…] provide legal services free of charge or without the expectation of payment, and that mainly benefit poor or underprivileged individuals or communities and the organizations which assist them. These may include representing and advising individuals, communities or organizations on matters of public interest, which otherwise would not obtain them in an effective manner. In addition, pro bono legal services may also benefit civic, cultural, and educational institutions serving the public interest which would also lack effective representation and counsel.”
Apart from being a voluntary and non-remunerated service in most law firms, schools, foundations, among other organizations, pro-bono work is known to provide ethical norms and parameters that maintain the same quality standards as paid legal services.
To illustrate, pro-bono assistance is made latent in practice through legal advice or representation, legal training, and defense in trial, in benefit of different social groups, which commonly include migrants, children and teenagers, women, people with disabilities and indigenous communities, who would otherwise not have access to legal counsel. On the other hand, areas such as the provision of legal services to family and friends, teaching in law-schools and legal support in order to receive a favorable condition, does not qualify as pro-bono work.
Law firms have been increasingly interested in contributing to this social cause, either individually or collectively, by raising awareness of the positive impact this service has in the promotion and defense of human rights. Pro-bono work also provides lawyers with the opportunity to enrich their knowledge, gain experience and develop their social and judicial expertise.
Pro-bono work expresses the social responsibility of lawyers to seek justice for all. It is a way to ensure the greater good, contributing to a fair and equal rule of law, which includes those who are in an unfavorable position, with the aim of uniting society. The legal industry has demonstrated that by devoting experience, knowledge, and time to legal assistance, justice can be served without expecting something in return. The time has come to strengthen the confidence in legal work, and pro-bono work is a great way to do so. At Acedo Santamarina, A.C. we are committed to doing pro-bono work, offering high-quality legal services in benefit of the most needed sectors in society.
Unconstitutionality of the rule that gives preference to the mother in the guardianship and custody of a minor.
Formerly, the law was conceived as positivist to the extreme, that is, the legislator was the one who took the leading role in the legal system; he issued rules, which were not questioned whether they were just or unjust, but only legal certainty was important, which was the only value to be safeguarded. It was after the Second World War that a paradigm shift occurred, which resulted in the Nuremberg Trials, where the world and the doctrine questioned the type of legal system that had been followed, since the rules issued by the legislator ended up being unjust, since they did not foresee all the assumptions. In the case where the law contains legal assumptions and consequences, if they lack intrinsic value and fairness, then they are unjust.
Under this paradigm, it is necessary to change the study of law: beyond legal interpretation – since this was insufficient to understand the content of the rules – to give birth to legal argumentation: now the leading role is played by judges and no longer by the legislator, who will be in charge of interpreting, but not only this, but that such interpretation must be properly argued.
As a consequence of the aforementioned, the importance of the Judicial Power in our legal system in the 21st century has been notorious. Among the organs that make it up, we have the Supreme Court of Justice of the Nation, which has adopted an important place on issues of great relevance at present, as well as to rule on the constitutionality or unconstitutionality of a legal rule.
Currently, our legal system seeks to protect the human rights of individuals; however, since there is no perfect legislator, sometimes the legislator issues laws that endanger fundamental rights; therefore, it is important for the Supreme Court of Justice of the Nation to hear and rule on those laws that are contrary to human rights.
On November twenty-first, two thousand nineteen, the First Chamber of the Supreme Court of Justice of the Nation ruled the unconstitutionality of article 282 paragraph B section II third paragraph of the Civil Code of Mexico City, which provides that, in case of divorce of the spouses, if they have children in common, the mother has preference over the guardianship and custody of children under twelve years of age.
In the analyzed case, the father of a twelve year old minor filed an indirect protection action alleging that the mentioned article 282 was discriminatory. Said amparo was processed before the Second District Court in Civil Matters in Mexico City, whose files were forwarded to the Fourth District Court of the Auxiliary Center of the Seventh Region, with residence in Acapulco, Guerrero, which dismissed the amparo proceeding and denied the amparo regarding the unconstitutionality of the aforementioned article.
Through an appeal for review heard by the Fourteenth Collegiate Court in Civil Matters of the First Circuit, such court ordered the referral of the case file to the Supreme Court of Justice of the Nation, due to the fact that the constitutionality of article 282 of the Civil Code for Mexico City was challenged, considering it contrary to the human right of equality and non-discrimination provided in article 1 of the Political Constitution of the United Mexican States and in the international treaties to which the Mexican State is a party.
The issue analyzed by the Supreme Court of Justice of the Nation is recurrent in family relationships when the spouses are going through their divorce and there are minors involved. For several years we have seen that women have a greater preference over the guardianship and custody of their children, taking away from the father certain relevance and opportunity in the life of the minor. Nowadays, women are fighting for our rights, among these, our dignity and equality in various social areas, in which we are treated differently simply because we are women; as a result this has brought multiple movements that have encouraged the creation of new laws to protect us and to reform certain laws that allow us to have the same rights and opportunities as men.
However, because it is an issue that has taken relevance does not mean that there are no laws that discriminate against men, although they are scarce; it is important to remember that this is not a struggle of who is better, it is a struggle for equality for all.
When we speak of equality we refer primarily to the treatment that the State gives to people so that they have the same access to opportunities to enjoy human rights, without distinctions, since we are all persons and enjoy the same rights. However, the legal provision analyzed does make distinctions and marks a clear preference for the mother, making more evident the role that we as women must follow, as well as fulfilling the role of being housewives and dedicating ourselves to the care of the children, displacing the gender equality that today has been sought with great care to become a reality. In turn, the law should not distinguish in favor of one of the parents because of their sex, but rather should seek to protect the best interests of the child for guardianship and custody.
Daniela Rubio de la Rosa
Another criticism in this analysis is that the judge only behaved as a simple applicator of the rule, without regard to the specific case and special circumstances of each of the parties; the legal operator, having such a vast legal system, did not take into account human rights, did not weigh the values with respect to which he had to decide, and simply limited himself to the application of a rule that falls short, despite the fact that he was obliged to be protectionist in a matter involving the rights of minors.
It is important that as jurists we move away from a scarce and reduced conception of law as a set of rules, since history itself has shown us that law is not only made up of rules that are issued by the Legislative Power, but that it is governed by a series of principles and values, which in turn invite us to take the concrete case and analyze it without standardizing and without considering all cases as equal, since law responds to a reality, and each reality is different.
Measures foreseen in the Securities Market Act (“Ley del Mercado de Valores”) for preventing the hostile takeover of a public stock corporation (sociedad anónima bursátil)
The First Chamber of the Mexican Supreme Court of Justice has stated that the control of a stock corporation “may be actualized by the holding of a certain patrimonial power or by a power of management (administrative) direction“, and held that the plurality of types of control may be classified, depending on its cause or origin, in two groups:
(i) Corporate control derives from the holding of a certain percentage of shares representing the capital stock, which allows its holders to exercise the right to vote in shareholders’ meetings to impose decisions to such meeting, to the board of directors, to appoint and remove directors or to direct the corporate policies of the company.
(ii)Arrangements between shareholders contained in shareholders’ agreements, the company’s bylaws, or any other internal regulatory document of the company, which result in certain shareholders, regardless of whether they are minority shareholders, directing the company’s strategy or major policies.
On the other hand, according to the Supreme Court, the change of control of a stock corporation can also be distinguished, depending on whether it has the collegiate approval of the shareholders and the governing bodies of the company, or not, into hostile or undesired, and friendly or desired.
To ensure that takeovers are desired by the corporate governance bodies of the companies, Article 48 of the Securities Market Act establishes the possibility that the bylaws of public stock corporations may stipulate measures to prevent the undesired or hostile acquisition by third parties or by the shareholders themselves, of shares that grant control of the company, subject to the following requirements:
- The extraordinary general shareholders’ meeting has approved such measures, without 5% or more of the capital stock represented by the shareholders present having voted against them.
- Do not exclude from the economic benefits resulting from the measures, the shareholders other than the persons who intend to acquire control of the company.
- Do not restrict the acquisition of control in an absolute manner.
- Do not contravene the provisions of the Securities Market Act regarding takeover bids.
In the event that they do not comply with the above-mentioned requirements, the measures established in the bylaws will be null and void.
Additionally, according to the same article 48, in order to preserve the principle of non-discrimination and the protection of minority rights, public stock corporations are prohibited from introducing certain provisions foreseen for stock market promotion corporations (“sociedades anónimas promotoras de inversion”), specifically those contained in sections I, II and III of Article 13 of the Securities Market Act, in the understanding that, in case such prohibition is not respected, the National Banking and Securities Commission (“Comisión Nacional Bancaria y de Valores”) may authorize the adoption of clauses of such nature.
In analyzing the constitutionality of Article 48 of the Securities Market Act, the First Chamber of the Supreme Court of Justice of Mexico held that the measures of protection against the loss of corporate control derived from a “hostile” purchase of shares, established in such legal provision, are compatible with the economic freedoms recognized in Article 5 of the Mexican Constitution, since, among other matters, such measures “empower individuals to associate in order to voluntarily restrict their own contractual freedom for addressing the risk of sales of shares that may jeopardize the control of the company“, without incurring in absolute prohibitions.
Derived from such analysis of constitutionality, the First Chamber issued the decision entitled: “SOCIEDADES ANÓNIMAS BURSÁTILES. ARTICLE 48 OF THE SECURITIES MARKET ACT, WHEN REGULATING THEIR POWER TO PROVIDE IN THEIR BYLAWS MEASURES TO PREVENT THE ACQUISITION OF SHARES THAT GIVE CONTROL OF THE COMPANY TO THIRD PARTIES OR TO THE SAME SHAREHOLDERS, DOES NOT VIOLATE THE FUNDAMENTAL FREEDOMS RECOGNIZED IN ARTICLE 5 OF THE CONSTITUTION”.
Roberto A. Altamirano Fuentes