—Alfonso Herrera García, Professor of Constitutional Law, Universidad Panamericana (Mexico City); Irene Spigno, General Director, Inter-American Academy of Human Rights; Mauro Arturo Rivera León, Assistant Professor, University of Silesia in Katowice
I. INTRODUCTION
On November 7, 2022, the Inter-American Court of Human Rights (IACtHR) issued the judgment in the case of Tzompaxtle Tecpile et al. v. Mexico, in which it declared the responsibility of the State for subjecting three people to forms of detention that intrinsically violate human rights. Among other reparation measures, the IACtHR ordered the State to reform its regulations to eliminate and modify, respectively, two forms of detention: the arraigo and preventive detention.
Since 2008, article 16 of the Mexican Constitution established a form of detention called arraigo. Considered a tool against organized crime, the arraigo authorizes the detention of a person for up to 80 days without the prosecutorial authorities filing criminal charges against them; during the arraigo period, authorities may find a way to charge the person with a crime, which is why this type of detention is informally known as “detain to investigate”. The arraigo has been repeatedly linked to practices of torture and fabrication of crimes that violate human rights, by authorizing a term of detention outside the framework of a criminal proceeding, and without due judicial control, which far exceeds the permissible limit.
In the Tzompaxtle Tecpile case, the IACtHR stated that the arraigo is equivalent to “the very denial of due process” and that it violates the human rights to personal liberty and presumption of innocence. Therefore, it ordered the Mexican State to remove the figure from its regulations. Taking into account the current regulatory framework, complying with this measure will require a constitutional amendment. In the same ruling, the IACtHR declared that the institution of automatic preventive prision in Mexico, which is the imprisonment of a person during a criminal proceeding, before the decision is handed down, was also contrary to the American Convention. The IACtHR stated that when ordering precautionary measures restricting liberty, the State must prove, based on the law and the facts, according to each specific case, the existence of the conditions that justify and require the detention.
In Mexico, there is an overuse of preventive detention, largely derived from regulations that allow its use without complying with human rights standards. The IACtHR further noted that the incompatibility of Mexican laws with human rights not only persists today, but that various problematic aspects of the current legislation were even expanded through reforms. In terms of preventive detention, an example is the automatic preventive detention currently contemplated in article 19 of the Constitution. Under this concept, people accused of any of a long list of crimes must be imprisoned from the beginning of the criminal process, without the public prosecutor having to present any reason justifying the detention. In the Tzompaxtle Tecpile et al. case, the IACtHR ordered the State to modify its regulatory framework to comply with the requirements indicated in the judgment.
II. MAJOR CONSTITUTIONAL DEVELOPMENTS
Despite the tendency under Mexican constitutionalism to amend the Constitution frequently, there has only been one constitutional amendment in 2022. On November 18, 2022, a constitutional amendment regarding the National Guard was introduced. The main purpose of this amendment was to extend the participation of the armed forces in public security tasks until 2028 (for a total period of 9 years) while the National Guard – a civil body introduced in 2019 – develops its structure, capacity, and territorial implementation. According to the 2019 constitutional reform decree that created the National Guard, the Armed Forces would support matters of public security tasks for a five-year period, until 2024, while the new security body – the National Guard – was consolidated, but now this period will end in 2028. According to this constitutional amendment, the Armed Forces may participate in public security only under extraordinary circumstances and only when necessary, as a temporary measure, and it must be expressly requested and justified by the civil authority. Furthermore, the Armed Forces’ involvement must strictly comply with the legal order, only support and complement public security institutions and be submitted to constant review or supervision of institutional performance through accountability measures.
The constitutional amendment complements a series of legislative reforms implemented in September 2022 that changed the legislative framework regulating the National Guard and Public Security. The main point of these legislative reforms, involving the Organic Law of the Federal Public Administration; the Law of the National Guard; the Organic Law of the Mexican Army and Air Force and the Law of Promotions and Rewards of the Mexican Army and Air Force, was to transfer the operational and administrative control of the National Guard from the Secretary of Security and Citizen Protection (SSPC) to the Secretary of National Defense. This transfer has tilted the scales towards an oversized participation of the military in public security, in defiance of Article 21 of the Constitution, which clearly establishes both the civilian nature of the National Guard and its affiliation with the institutions of security and citizen protection. Another aspect of the set of 2022 reforms that goes against the civilian nature of the Guard is the concept of the Commander, which is the person in charge of exercising the operational command of the National Guard. After the 2022 reform, this person is now appointed by the President of the Republic, based on a proposal made by the head of the Secretary of National Defense. Even more: the person to occupy the position must hold a military rank of General Commissioner to be appointed. For this and other reasons, the likelihood that someone from the Armed Forces will be named Commander is considerable, in an institution supposedly civil in nature.
In addition, important legislative reforms were adopted for the protection of the cultural heritage and property of indigenous and afro-Mexican peoples and communities (see the Ley Federal de Protección del Patrimonio Cultural de los Pueblos y Comunidades Indígenas y Afromexicanas, published on January 17, 2022); the inclusion of interculturality and human rights in military education (with the Decreto por el que se reforman diversas disposiciones de la Ley de Educación Militar del Ejército y Fuerza Aérea Mexicanos, published as well on January 17, 2022) and with reference to human mobility and rights of refugees (Decreto por el que se reforman y adicionan diversas disposiciones de la Ley sobre Refugiados, Protección Complementaria y Asilo Político, published on February 18, 2022); and the guarantee of the best interests of the child by excluding the possibility of enlisting minors in military service (Decreto por el que se deroga el artículo 25 de la Ley del Servicio Militar. January 17, 2022).
Furthermore, with a decree published on May 11, 2022, the Mexican Parliament approved a package of legislative reforms that involve more than 20 federal and state laws for the inclusion of the principle of gender equality in federal and state institutions in the implementation of the corresponding constitutional principle introduced in 2019. An important legislative reform was also introduced with reference to the Ley General en Materia de Desaparición Forzada de Personas, Desaparición Cometida por Particulares y del Sistema Nacional de Búsqueda de Personas (published in the Official Gazette of the Federation on May 13, 2022), creating the National Human Identification Center and strengthening the powers of the National Search Commission by incorporating the individualized and massive or large-scale approach into the search strategies, necessary for the type of disappearances in Mexico.
A specific human rights approach has been included with reference to persons with disabilities in order to promote their right to decent work and employment, with equal opportunities and equity, to provide them certainty in their personal, social, and labor development (see the decree amending Article 11 of the General Law for the Inclusion of Persons with Disabilities published in the Official Gazette of the Federation on October 27, 2022). The reform includes the obligations of the Secretary of Labor and Social Welfare to prohibit any type of discrimination on the basis of disability in the labor process; to ensure accessible, safe, and healthy working conditions; to generate public policies for the labor inclusion of persons with disabilities; to prepare and implement the national labor and employment program for persons with disabilities; and to provide technical and legal assistance to the productive sectors in matters of labor rights and inclusion of persons with disabilities.
Finally, on December 27, 2022, Articles 76 and 78 of the Federal Labor Law were amended with an increase in the number of vacation days that a worker will enjoy per year from six days to twelve days. The amendment also provides that the vacation days must be continuous, with the option for the worker to distribute them in the form and time that he/she requires. This is a very important reform developing the content of Article 123 of the Mexican Constitution but also because it represents a significant advance in the recognition, promotion, protection, and guarantee of workers’ rights.
III. CONSTITUTIONAL CASES
1. Acción de inconstitucionalidad 151/2020: The Federal Recall Act (02/02/2022).
Mexican President López Obrador firmly believes in direct democracy. During his political campaign and throughout his government, he has resorted to plebiscitary mechanisms and informal consultations to make decisions. Upon arriving in office, he successfully pushed a constitutional amendment to constitutionalize the right to recall a sitting President.
In 2021, the Federal Congress issued the Federal Recall Act (FERECA). FERECA provided that a presidential recall election should ask the electorate the following question “Do you agree that [Name of the President] should be removed from office due to loss of confidence or that he should continue in office until the end of his term?”.
A parliamentary minority challenged the statute claiming that the expression “continue” turned the supposed recall into a confirmation. The Supreme Court proved to be severely fractured. Given that an 8/11 majority is required to strike down a law, in a 7-4 vote, the Court could not muster the supermajority to invalidate the statute but also could not declare it constitutional.
2. Acción de inconstitucionalidad 73/2021: Transgender children and youth (07/03/2022).
The State of Puebla amended its civil code to require a person requesting to change the gender assigned in their birth certificate to be at least eighteen years old. The National Human Rights Commission filed an action of unconstitutionality. The Commission deemed the statute unconstitutional as it infringed the free development of personality and the right of children and youth to determine their gender identity.
The Supreme Court struck down the law unanimously. Employing a proportionality test, the Court considered that forbidding legal sex reassignment to minors infringed the Mexican Constitution, the American Convention on Human Rights, and the Convention on the Rights of the Child. Notably, the Court held that the analysis had to be based on an intersectional perspective, considering “the multiple sources of oppression which altogether attempt to subordinate and discriminate against vulnerable groups and minorities, like transgender children and youth.”
3. Amparo directo 30/2020: A freedom of expression challenge (16/03/2022).
Humberto Moreira, a former Governor who had presided over the PRI (Partido de la Revolución Institucional), was detained in Spain on charges of money laundering and criminal association in 2016. Following the detention, Sergio Aguayo, a journalist, published a condemning column in which he stated, among other things, that Moreira was “a politician with the stench of corruption.” Moreira sued Aguayo. After losing in the first instance, the Court of Appeals reversed the judgment and awarded Moreira more than half a million dollars in damages. Widespread criticism emerged of a seemingly devisive use of a civil mechanism to silence dissenting and critical voices.
Aguayo filed an amparo. A Circuit Court would ordinarily have resolved the case. The First Chamber of the Supreme Court exercised certiorari and asserted jurisdiction over the case as part of its discretional docket. In its decision, the Supreme Court unanimously favored Aguayo and concluded the column was a legitimate exercise of the freedom of expression. The Court claimed that Aguayo’s column had discernible facts and opinions and applied its well-known doctrine on actual malice, ordering the Court of Appeals to find Aguayo not liable.
4. Amparos en revisión 540/2021 and 541/2021: The Attorney General’s case (28/03/2022).
In September 2015, Alejandro Gertz Manero’s brother died at age 85 from an illness. Gertz Manero blamed his brother’s wife (Mrs. Cuevas) and her daughter for his brother’s death and even unsuccessfully tried to charge them with murder. In February 2019, Gertz Manero was appointed Attorney General. He was the first Attorney General to serve after the office became constitutionally autonomous in 2018 following an earlier constitutional amendment.
Upon his arrival in office, the Attorney General managed to reopen the case and successfully resume prosecution in what was widely perceived as a conflict of interest. A Judge issued an arrest warrant and from prison, Mrs. Cuevas and her daughter filed constitutional complaints. The District Court ruled in their favor ordering the first instance court to reexamine the case and issue a new decision considering further evidence. Gertz appealed to the Supreme Court. In a huge national scandal, phone conversations were filtered in which Gertz Manero admitted having seen the Supreme Court’s draft opinion (favoring Mrs. Cuevas). Justice Pérez Dayan, the Judge Rapporteur, initially proposed to uphold the District Court’s decision ordering further analysis. In the Court’s public deliberation, such proposal failed to gather support.
Justice Gutiérrez was tasked with drafting a new proposal which eventually garnered a majority. In its decision, the Court went even further than the District Court and ordered the immediate release of the accused. The decision caused further debate since Mrs. Cuevas and her daughter did not file an independent appeal but a cross-appeal (recurso de revision adhesiva) merely attempting to preserve the District Court’s Judgment, not asking further protections. The case severely hurt the reputation of the Attorney General, who had already been immersed in scandal for an accusation that he was illegally granted the highest rank for a Professor in the National System of Researchers despite a mediocre publication record.
5. Acción de inconstitucionalidad 64/2021 The Electric Industry Act (07/04/2022).
A peculiar situation occurred in the discussion of the Federal Electric Industry Act. In February 2021, President López Obrador proposed amendments to the Federal Electric Industry Act which favored acquiring electricity from the Fed4)eral Electric Commission, a state-owned company. A parliamentary minority challenged several provisions. The disputants claimed the law violated free enterprise and the right to a healthy environment as it displaced renewable energies in favor of fossil fuel power plants.
The Court dismissed the claim. Article 105 of the Constitution provides that an eight-vote supermajority is necessary to strike down a law. The Court claimed that only a seven-vote majority had been achieved. Nonetheless, eight justices arguably agreed on the statute’s unconstitutionality during the Court’s public deliberation, although invoking different grounds. The Supreme Court’s voting protocol requires a supermajority to agree on the case’s outcome, not on the reasoning. Some Justices even manifested doubts during the public deliberation on the case’s outcome (hinting at possible manipulations of the vote counting). Since vote counting is a task of the Chief Justice, the decision led to a debate about how the votes had been counted and whether or not the Chief Justice, having voted to preserve the statute, had used vote counting to advance his policy preference.
6. Amparo en revisión 51/2020. Human rights in cases of enforced disappearance (10/08/2022).
Two persons, as indirect victims, reported the enforced disappearance of two relatives. They also alleged the failure of the Public Prosecutor’s Office to take the necessary steps to investigate the facts. The First Chamber of the Court referred extensively to the rights involved in the human drama of enforced disappearance.
The Chamber held that enforced disappearance is one of the most serious human rights violations because it exposes the relatives of the disappeared person to acts analogous to torture and inhuman treatment. The indirect victims do not know the location and destination of a loved one (the direct victim). In addition, they are forced to carry out search and investigation actions.
Enforced disappearance produces the anxiety of not knowing whether the life of the disappeared person is in danger or in what health and physical and emotional conditions he or she is. This suffering is deepened if there is a lack of institutional response to locate a disappeared person. It also generates a feeling of powerlessness.
The ruling established that, when judging enforced disappearances, judges must consider a mitigated standard of proof. The evidentiary mitigation must allow the analysis of indicia, indirect and testimonial evidence considering the context in which the acts occurred. This approach is necessary: many cases of enforced disappearance are characterized by a lack of direct evidence. Therefore, in considering the facts, it is not necessary to first prove the responsibility of the public officials involved.
The Chamber ruled that Amparo judges may establish measures to achieve comprehensive reparation. To this end, they must consider that enforced disappearance represents multiple violations of rights: rights to liberty, personal integrity, identity, life, and recognition of legal personality, among others. The search for truth and access to justice is essential for victims to find answers about the fate of their loved ones. That includes the legitimate expectation that those responsible will face the consequences of their actions. Moreover, this correlates with the human right to be sought, which is held by the direct victim of this crime.
7. Amparo en revisión 341/2022. The right to be forgotten of deceased persons (23/11/2022).
A civil association filed an Amparo lawsuit against Article 1392 Bis of the Civil Code for the Federal District (now Mexico City). It considered that the deletion of personal data of deceased persons (contained in that provision) was contrary to freedom of expression and free access to information.
That provision regulated the instruction to delete the personal information of a deceased person stored in public and private electronic records (including images, audio, video, social networks, and any method of Internet search) in cases in which the deceased person has not expressed his wishes or even when he has expressed his wishes in that regard.
The First Chamber declared the provision unconstitutional. To this end, it developed the content of the fundamental right to protect personal data applicable to deceased persons. The Chamber considered that this right should be understood in light of the technological development of our time. This development allows the generation, storage, and communication of personal information with few limitations of space and time. The information about people who have died can be kept for longer than the time of a natural life. In this sense, permanence and contextual protection of this right are justified, even in the case of death.
The Chamber concluded that this provision regulating the deletion or cancellation of personal data of deceased persons is contrary to freedom of expression and the right to information. The legal wording is ambiguous: it does not distinguish between published and unpublished information. In addition, it does not establish any conditions for canceling the data when the rights of third parties are involved.
The ruling also determined that the legal provision establishes a barrier to public debate. It produces consequences that could inhibit the development of public deliberation by digital means. This circumscribes the social dimension of freedom of expression and the right to information.
Concerning the alleged “right to be forgotten”, the ruling noted that the European Union regulation has referred to the right of a person to cancel their personal information, including information contained on Internet search engines. However, it noted that, in Mexico, there was no legal definition of that right. This supposed right cannot be applied with the same characteristics in Mexico because the federal Constitution establishes that all public information must remain public. And time is not relevant in relation to the publicity of information.
8. Acciones de inconstitucionalidad 130/2019 and 136/2019. Unconstitutionality of provisions establishing crimes that lead to ex officio preventive detention (24/11/2022).
Ex officio preventive detention is an extraordinarily problematic concept in the Mexican legal system. It allows the preventive detention of a person who is only suspected of committing a crime without requiring the judge to give reasons for that decision. There are open cases before the Inter-American Court of Human Rights (such as the case of García Rodríguez and Alpízar Ortiz v. Mexico) in which the question to resolve is whether this constitutional provision is valid under the American Convention on Human Rights. Before this international Court, the victims allege the violation of multiple human rights, such as personal liberty and the presumption of innocence.
The Mexican Court declared the unconstitutionality of Article 167 of the National Code of Criminal Procedure and Article 5 of the National Security Law. These articles qualified the crimes of “smuggling”, “tax fraud” and comparable offenses, as well as “crimes related to tax receipt fraud” as crimes involving “threats to national security”, which therefore merited preventive detention without judicial justification. The Court found this unconstitutional.
The Court ruled, however, that this decision did not imply declaring the unconstitutionality of the federal Constitution itself. But this determination was not obvious: Article 19 of the Federal Constitution states: “The judge shall order ex officio preventive detention in cases of […] the serious crimes the law determines to be against the security of the nation…”
The Court did strike down Article 2 of the Federal Law on Organized Crime. This article defined organized crime as a group of three or more persons organized to commit crimes of smuggling, tax fraud, and comparable offenses, as well as crimes related to tax receipt fraud. The ruling considered that the article violated the principle of ultima ratio by including conduct that is not part of the constitutional regime of organized crime.
9. Controversia constitucional 207/2021. Presidential failure to appoint members of the Economic Competition Commission (28/11/2022).
The Federal Economic Competition Commission (COFECE, by its acronym in Spanish) filed a constitutional controversy lawsuit (conflict between branches and levels of government) against the failure by the President of the Republic to send to the Senate the candidates for that body. The President had the duty to propose those candidates for ratification. This presidential mandate is established in Articles 28 and 89 of the Federal Constitution.
The Commission is an autonomous body whose constitutional function is supervising free economic competition, to prevent, investigate and combat monopolies, monopolistic practices, concentrations, and other restrictions on the efficient functioning of markets.
The Plenary of the Court determined that, in this matter, there is a mandatory competence for the President. Article 28 of the Constitution establishes that after receiving the list drawn up by an evaluation committee, with the names of the persons who obtained the highest scores in a knowledge test, the Executive Branch must select one person for each vacancy and propose their ratification to the Senate.
The Court declared this obligation unfulfilled. This situation affected the sphere of competence of the Federal Economic Competition Commission because it prevented it from exercising the powers that require a qualified vote. Therefore, it declared the President’s omission unconstitutional. As part of the effects of the decision, it was ordered to remedy that omission within 30 calendar days.
10. Controversia constitucional 90/2020. Normative grounds for the participation of armed forces in public security (29/11/2022).
The Chamber of Deputies of the Federal Congress filed a constitutional controversy against the President of the Republic for the issuance of the Executive order entitled: “Order by which the permanent armed forces are available to carry out public security tasks in an extraordinary, regulated, supervised, subordinate and supplementary manner.” This order was published in the Official Gazette of the Federation on May 11, 2020.
In this order, the President orders the permanent armed forces to participate with the national guard in public security functions. The armed forces must collaborate in these tasks while the national guard develops its structure, capabilities, and territorial implantation. That participation cannot exceed five years from the entry into force of the decree that reformed the Constitution in this matter. This decree was published on March 26, 2019.
The Plenary of the Court recognized the validity of this order. It concluded that it did not infringe the principle of the division of powers. The fifth transitory article of the aforementioned constitutional reform decree grants exceptional power to the President to use armed forces for public security tasks. According to the Court, this presidential power did not depend on Congress exercising its own legislative power in this area. Armed forces intervention would not be the result of a unilateral decision but of a competence provided directly by constitutional reform.
The Court also held that the Executive order was well reasoned. The intervention of armed forces would only be for five years and with the specific abovementioned characteristics: extraordinary, regulated, supervised, subordinate, and supplementary. Thus, in the opinion of the Mexican Court, the Inter-American Court of Human Rights standards (mainly in the case of Alvarado Espinoza et al. vs Mexico, issued on November 28, 2018), were respected.
IV. LOOKING AHEAD
For the first time in Mexican Constitutional history, a woman is the current Chief Justice of the Supreme Court. Norma Lucía Piña Hernández was appointed on January 2, 2023, while the former president, Arturo Zaldívar Lelo de Larrea, ended his period on December 31, 2022.
On April 19, 2023, the Supreme Court of Justice of the Nation declared the legislative reforms package implemented in September 2022 that modified the legislative regime of the National Guard unconstitutional. As already mentioned above, these reforms transferred the operational and administrative control of the National Guard to the Secretary of National Defense. By eight votes against three, the abovementioned unconstitutionality was declared by the country’s highest constitutional court based on the violation of Article 21 of the Constitution which is a guarantee of the civilian nature of the National Guard.
On January 25, 2023, the IACtHR issued the García Rodríguez et al. v. Mexico decision in which, once again, it condemned Mexico for violating several provisions of the American Convention with the arraigo and informal preventive detention, as already stated in the Tzompaxtle Tecpile et al. v. Mexico case.
V. FURTHER READING
César Astudillo, El dilema de la última palabra. Mandato, autoridad y funcionamiento de las altas cortes de derechos (Tirant lo Blanch, 2022)
Alfonso Herrera, ‘Derechos políticos de las personas mayores: derecho a votar y ser votado, y derecho de reunión y asociación’, in Aída Díaz-Tendero (ed.), Manual para juzgar casos de personas mayores (Suprema Corte de Justicia de la Nación, 2022, 191-222).
Alfonso Herrera, ‘Jurisprudencia constitucional de la Suprema Corte de Justicia de México en 2021’, Anuario Iberoamericano de Justicia Constitucional, no. 6(2), 2022, 975-691.
Alfonso Herrera, ‘A 10 años de la reforma constitucional sobre derechos humanos: Una propuesta de cuatro fases jurisprudenciales’, in Eduardo Ferrer y José Luis Caballero (eds.), La reforma constitucional sobre derechos humanos en México. Una evaluación con perspectiva de futuro (Tirant Lo Blanch, 2022, 637-662).
Mauro Arturo Rivera, ‘¿La tumba de Otero? Naturaleza, funcionamiento y problemáticas de la declaratoria general de inconstitucionalidad en México’, Anuario Iberoamericano de Justicia Constitucional, no. 26(1), 2022, 57-88.
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