Contextual Motivation and Motivation by Referral

By: Carlos Enrique Castillo

From a legal duty perspective, the motivation behind judicial rulings constitutes a constitutional obligation that must precisely reveal the factual and legal reasons on which the judge's decisions are based; to the extent that a lack of motivation will result in the nullification of judicial decisions, as it evidences a violation of the right to defense of the aggrieved party, Art. 232, letter c), CPCM.

This argumentative foundation must always be included within the ruling (Art. 216 CPCM), hence it is called contextual motivation, as it appears in the text or within the judicial decision, even in those issued during hearings as oral rulings, which does not exempt them from being reasoned or duly motivated.

Regarding motivation, Art. 20 of the Judicial Code of Ethics states: "The obligation to motivate decisions is aimed at ensuring the legitimacy of the Judge, the proper functioning of a system of procedural appeals, the adequate control of the power of judges, and the justice of judicial decisions; which contributes to good administration of justice. "The obligation to motivate decisions is aimed at ensuring the legitimacy of the Judge, the proper functioning of a system of procedural appeals, adequate control of the power of judges, and justice in judicial decisions; contributing to good administration of justice.

Motivation involves expressing, in an orderly and clear manner, legally valid reasons that justify the decision.

The lack of motivation in judicial decisions is arbitrary and intolerable; consequently, when making each decision, it must be taken into account that:

A. Motivation takes on maximum intensity concerning decisions that deprive or restrict rights, or when the Judge exercises discretionary power.

B. The Judge must motivate their decisions both in terms of facts and law; additionally, in terms of facts, they must proceed with analytical rigor in handling the evidentiary framework, specifically showing what each piece of evidence contributes, and then making an overall assessment in the pursuit of approximating the truth as closely as possible.

C. In terms of law, the motivation cannot be limited to citing applicable provisions and norms, especially in rulings on the merits of the cases, but must extend to all legal arguments of the parties and the reasons produced in relevant jurisprudential precedents for the decision.

D. In collegiate courts, deliberation must take place, and motivation should be expressed in respectful terms and within the bounds of good faith. Each Judge's right to dissent from the majority opinion must be exercised with moderation.

E. Motivations must be expressed in a clear and precise style, avoiding unnecessary technicalities, and with the conciseness compatible with the complete understanding of the reasons presented.

In general terms, especially in Civil and Commercial Procedural Law, motivation, by legal mandate, must be included in the decision itself; however, in Administrative Law, due to its anti-formalist nature (Art. 3.3 LPA), motivation can be done by reference or on the basis of reports or opinions that precede the decision, as relevant elements to consider. This latter form of motivation is known as in aliunde or by reference.

This form or technique of motivation is based on the principle of unity of the administrative file, which consists of compiling all documents related to the processing of a specific administrative procedure, considered as integral and interrelated parts of a whole, as provided in Art. 8 of the Administrative Procedures Law (LPA), which states regarding the administrative file:The administrative file is understood as the ordered set of documents and actions that serve as the background and foundation for the administrative resolution,as well as the actions aimed at executing it.".

n this motivation, jurisprudential citations play an important role, as administrative motivation as in aliunden aliunde, allows for references to resolutions of other related procedures according to the principle of coherence. See Art. 3.7. LPA / Principle of Coherence:"Administrative actions will be consistent with previous administrative actions,except when it is pertinent to deviate from them for reasons explained and adequately motivated in writing."

The in aliunde motivation as in aliunde technique is not unknown in our administrative legal system, as Art. 8 LPA supports this reference to reports or opinions for proper motivation or serves as background and foundation for the resolution to be issued when cited in the text of the same or referred to within the resolution, thereby incorporating their content.

Administratively, this legal figure or motivation technique is acceptable, provided that the reference or citation is in the file and the interested party has access to its content.

The important and determining factor for the validity of a resolution is that the decision-making act does not appear devoid of sufficient reasons for being issued, that these reasons are expressed and externalized by the administrative or judicial authority, and that the recipient has access to them.

Unlike contextual motivation, typical of judicial proceedings where the grounds for the decision, resolution, or judgment are expressed in its text, the in aliunde or by reference motivation may appear in a document different from the act it motivates, previously issued, usually materialized in a report or opinion. The national legal practice is clear in not recognizing motivation by reference in civil or commercial judicial processes (Art. 216 CPCM), where motivation must be contextual; however, motivation by reference, as I have noted, is typical of administrative jurisdiction.