STRUCTURE OF THE STATE OF MEXICO
19. The Commission considers it important to first provide a brief description of the organizational structure of the Mexican State in order to highlight the most important institutions that impact on the situation of human rights in the country.
I. ORGANIZATION OF THE GOVERNMENT
A. The federal system
20. The United Mexican States is a federal, representative, democratic Republic made up of states that are free and sovereign in all internal matters but which are joined in a Federation that was established in conformity the principles of its Basic Law (Article 40 of the Political Constitution of the United Mexican States, hereafter referred to as the P.C.M.)
B. Separation of powers
21. The Government of Mexico is divided into its legislative, executive, and judicial branches. Consequently, no single individual or corporation may represent two or more of these branches, nor may legislative authority be vested in any one individual, except where, pursuant to article 29 of the Constitution, special powers are granted to the Chief Executive of the Union. In no other case, except as provided for in article 131, paragraph 2, shall special powers to legislate be granted (article 49 of the Constitution).
a. The legislative branch
22. The power to legislate in the United Mexican States is vested in a General Congress, which is divided into two Chambers: the Chamber of Deputies and the Senate. (art. 50 of the Constitution).
23. The Chamber of Deputies is composed of the representatives of the nation, all of whom are elected every three years. For each titular deputy, an alternate is also elected (art. 51 of the Constitution). Three hundred deputies are elected by a plurality of votes, within a system of single electoral districts and 200 by proportional representation under a system of regional lists, the lists being voted for in multiple districts. (art. 52 of the Constitution)
24. There are 128 senators in the Senate Chamber, two of whom in each of the 1 states and in the Federal District are elected by a relative majority of votes with a third seat reserved for the candidate receiving the largest minority of votes. Accordingly, political parties are required to register a list with two candidates. The largest minority senate seat is awarded to the candidate heading the list of the political party which gained the second highest number of votes in the district in question. The remaining 32 senators are elected by proportional representation through a system of lists voted on in a single national multi-slate district. The law lays down the rules and procedures governing such elections. All Senate seats are renewed every six years. (art. 56 of the Constitution)
25. The right to introduce laws or decrees is vested in: (i) the President of the Republic; (ii) the deputies and senators of the National Congress and; (iii) the respective state legislatures. (art. 71 of the Constitution).
26. Federal laws are approved by the National Congress. In accordance with article 72 of the Constitution, the Executive then has a right of veto, which is the power of the President of the Republic to make observations on draft legislation, as provided for in paragraphs (a), (b), and (c) of the same article 72, which state as follows: a bill approved in the chamber of its origin shall be referred to the other for discussion; if the latter approves it, it shall be sent to the Executive who, if he has no objections to make, shall immediately publish it; every bill shall be regarded as approved by the executive branch if it is not returned, with his objections, to the chamber of its origin within ten business days unless, during this time, the Congress shall have adjourned or suspended its meetings, in which case the return must be made on the first business day in which the Congress next meets; a bill or proposed decree rejected in whole or in part by the Executive shall be returned, with his objections, to the chamber of origin. It must be discussed anew by the latter, and if it is confirmed by a vote of two thirds of the total membership, it shall again be sent to the revisory chamber; if it is sanctioned by the latter by the same majority, the bill shall become a law or decree and shall be returned to the Executive for promulgation.
b. The executive branch
27. Supreme executive power in the Union is exercised by the President of the United Mexican States (art. 80, P.C.M.). The President is elected by direct vote under the terms prescribed by the Electoral Law (art. 81 of the Constitution).
28. The exercise of the supreme executive power of the Union is vested in a single individual who is designated "President of the United Mexican States" and who is assisted in the discharge of his functions by the various ministries and government departments (art. 80 of the Constitution and art. 2 of the Organizational Law of the Federal Civil Service).
29. The Executive shall have the power to, inter alia, appoint and remove freely the secretaries of the Cabinet, diplomatic agents and high-level employees of the Treasury, and to appoint and remove freely all other employees of the Union whose appointment or removal is not otherwise provided for in the Constitution or by law (art. 89, section II of the Constitution).
30. The President assumes the duties of the office on the first of December for a term of six years. A citizen who has held the office of President of the Republic, by popular election or by appointment as ad interim, provisional or substitute President, can in no case and for no reason again hold that office (art. 83 of the Constitution).
31. The Executive shall also have the power to: appoint ministers, diplomatic agents, and consuls-general with the approval of the Senate; to appoint with the approval of the Senate, the colonels and other high-ranking officers of the army, navy, and air force, and the high-level employees of the Treasury; to appoint the other officers of the army, navy and air force as provided by law; to appoint with the approval of the Senate the Attorney-General of the Republic; to direct diplomatic negotiations and make treaties with foreign submitting them to the ratification of the federal Congress; to appoint the ministers of the Supreme Court of Justice and submit such appointments, leaves of absence, and resignations to the approval of the Chamber of senators, or to the Permanent Committee, as the case may be. (Art. 89, sections III, IV, V, IX, X and XVIII of the Constitution)
32. A presidential system of government has been established in most political constitutions in Latin America. In the case of Mexico, this system is accentuated, possibly because of the interest initially in consolidating the achievements of the Mexican Revolution by putting in place an executive branch with powers that outweighed those of the other branches of government.
33. The executive branch is clearly at the centre of the political system and the political life of Mexico. In this connection, a number of authors, including Dr. Jorge Carpizo (2), have noted that among the reasons for this predominance of the executive branch are the following: the President is the leader of the predominant party, whose membership includes the principal trade unions and peasant and professional organizations; the weakness of the legislative branch derives from the fact that the vast majority of legislators are members of the predominant party who are aware that should they oppose the President their chances of success would be virtually nil and that they would doubtlessly be jeopardizing their own political careers; the fact that most members of the Supreme Court are political appointees who would not be opposed to issues that are supported by the President; the marked influence which decentralized State agencies and State-owned enterprises have on the economy, through the operations of the central bank, and the broad powers of the Executive in matters relating to the economy; the army's institutional arrangements under which senior officers are appointed by the President; the strong influence on public opinion through controls and power over the mass media; the concentration of economic resources within the federal government and specifically within the executive branch; the broad constitutional and extra-constitutional powers of the Executive, such as the power to designate the candidate of the ruling parte, the PRI and to appoint state governors; the power to determine all foreign policy issues of concern to the State free of restraint by the Senate; direct governance over what is by far the country's most important region, namely, the Federal District;(3) a psychological element: the preponderant role of the executive is generally accepted without much questioning.
34. From a socio-political perspective, the historical role of the Institutional Revolutionary Party (PRI) is crucial to an understanding of this phenomenon, as described by various commentators and in a number of studies on the presidential system in Mexico. In this connection, Miguel de la Madrid (4) has observed that the party "recognizes as its maximum leader the sitting President of the Republic, thereby conferring additional power on the individual who occupies this office and clearly influencing the functioning of the constitutional system and of the political process". Continuing, the same author and former President of Mexico concluded that:
The President of the Republic is thus constitutionally the Head of State and of Government; politically, he is the leader of the dominant party in the country and the arbitrator of the various interests, organized or otherwise, which lobby the Government to secure favorable treatment and advantages for their particular sectors. This casts him in the role not only of the overall national leader but also of the arbitrator of the different interests of all types in Mexican society. It is an office that is difficult, extremely complicated and burdensome, in which the skills of the holder must include the ability to combine and weigh the various functions assigned to the office by the constitutional regime, the political process and even the lifestyle of Mexican society.
35. As this report indicates, the Commission has taken note of and acknowledges the significant institutional changes which have taken place in Mexico and which have led to a deepening of multi-party politics and the strengthening of democracy, not only through increased participation by other parties in political life at the national and state levels, but also through the loss of the PRI's majority in the Chamber of Deputies, the election of an important leader of the PRD to the new post of Mayor of the Federal District as well as the election of other leaders of the PRD and PAN as governors of several states. All of this, regardless of the domestic political implications or of the impact on the political rules of the game, has led to a strengthening of the democratic institutional system in Mexico, the significance of which has been recognized both nationally and internationally. The various changes noted, however, have not brought about any significant alteration of the marked presidential character of the Mexican political system.
36. The Commission considers that the preservation of the lawful autonomy and independence of the different branches of government within the framework of cooperation that is needed to carry out the task of governing is an essential requirement for the proper functioning of a democratic and constitutional State based on the rule of law. However, the historical predominance of one party in the institutional life of the country has weakened the system of checks and balances on the executive branch. In this connection, it is important to point out that the recent results of the July 1997 elections may mark a major step towards reversing that trend, within a framework of democratic dialogue and constructive stability, which clearly represent a major challenge for Mexico's presidential system and its other institutions.
c. The Judiciary
37. The judicial power of the Federation is vested in a Supreme Court of Justice, in circuit courts, as a body in matters of amparo and as single judges in matters of appeal, and in district courts (art. 94 of the Constitution).
38. In order to appoint judges to the Supreme Court of Justice, the President of the Republic is required to submit a list of candidates for the consideration of the Senate. After interviewing the candidates, the Senate then designates the judge who will fill the vacancy in question (art. 96 of the Constitution).
39. Supreme Court judges serve terms of 15 years, and they may be removed from office only under the circumstances set out in Title Four of the Constitution, and, upon completion of their term, shall be entitled to a retirement benefit (art. 94 of the Constitution, penultimate paragraph).
40. A judge of the Supreme Court is required: to be a Mexican citizen by birth, in full exercise of political and civil rights; not to be less than 35 years of age on the day of the election; to have held on the day of the election the professional degree of lawyer for a minimum of five years issued by an authority or corporation legally empowered to do so; to enjoy a good reputation and not to have been convicted of a crime punishable by imprisonment of more than one year; but if it concerned robbery, fraud, forgery, abuse of confidence or other crime which seriously injures his good name as conceived by the public, he shall be disqualified for the office, whatever the penalty may have been; to have resided in the country during the two years prior to the date of the election; and not to have served as a Secretary of State, head of a Government department, Attorney-General of the Republic or Public Prosecutor for the Federal District, senator, federal deputy, Governor of a state, or Head of the Federal District during the year prior to the date of appointment. (art. 95 of the Constitution).
41. One of the main criticisms of the system for the appointment of judges of the Supreme Court of Mexico is the control which one political party has had for more than 60 years over both the executive and the legislative (Senate) branches. As a result, the system under which the President nominates candidates for confirmation by the Senate does not appear to be conducive to the proper functioning of an open, competitive system with due checks and balances on the selection process.
42. Circuit court magistrates and district court judges serve terms of six years, after which, should they be confirmed in their posts or promoted to higher office, they may be removed from office only under the circumstances and in accordance with the procedures established by law (art 97 of the Constitution).
43. In order to be considered for appointment, a circuit court magistrate must: be a citizen of Mexico with full capacity to exercise his civic rights, be over 35 years of age, be of good repute, not have been convicted of an intentional offense punishable by more than one year of imprisonment, have a legally issued law degree and at least five years of professional practice, in addition to the requirements set forth in the legislation governing careers in the judiciary (art. 106 of the Federal Judicial Organization Act, hereinafter referred to as the L.O.P.J.F.).
44. In addition, appointments and promotions to the office of circuit court magistrate and district court judge are through a system of open competitive examinations (art. 112, L.O.P.J.F.).
45. A district court judge is required to be a citizen of Mexico with full capacity to exercise his civic rights, to be over 30 years of age, to have a legally conferred degree of laws and at least five years of professional experience, to be of good repute and not to have been convicted of any intentional offense punishable by more than one year imprisonment. (art. 108, L.O.P.J.F.) Circuit court magistrates and district court judges are appointed and assigned by the Federal Judicature Council, on the basis of objective criteria and in accordance with the requirements and procedures established by the law (art. 97 of the Constitution).
46. The administration, oversight, discipline and career of the federal judiciary, with the exception of the Supreme Court of Justice, are the responsibility of the Federal Council of the Judicature, as provided for in the Mexican Constitution and the Federal Judicial Organization Act (art. 68, L.O.P.J.F.).
47. The judicial function in the ordinary jurisdiction of the Federal District is exercised by the High Court of Justice and the Council of the Judicature together with the other organs provided for by statute. A judge of the High Court must meet the same criteria which the Constitution requires for judges of the Supreme Court of Justice. In addition, High Court judges must also have had a distinguished professional career in the Federal District (art. 122 of the Constitution).
48. The Council of the Judicature is the competent body to appoint judges to courts of first instance and to any other types of court that may be established in the Federal District, in accordance with the applicable provisions governing the judicial branch (art. 122 (II) (4)of the Constitution).
49. With regard to the appointment of judges to the High Court of Justice of the Federal District, the second paragraph of article 122 (iv) (i) of the Constitution provides as follows:
In filling vacancies on the High Court of Justice, the Head of Government of the Federal District shall submit the candidacy in question to the Legislative Assembly for ratification.
50. 32. Judicial authority in the states shall be exercised through the courts established by their respective constitutions. In appointing the magistrates and judges to serve as the local judicial authorities, preference is given to those persons who have served effectively and with integrity in the administration of justice or who merit appointment by reason of their integrity, competence and experience in other branches of the legal profession (art. 116 (II) of the Constitution).
51. The Constitution also provides in the above-mentioned article that a judge of the High Court of Justice of each state must have the same qualifications as a Judge of the Supreme Court, as provided in article 95 of the Constitution.
52. State judges shall hold office for the term provided in the state constitutions, may be re-elected and, where so re-elected, may be removed from office only under the circumstances provided in the constitutions and statutory provisions governing the accountability of state employees (art. 116 (III) of the Constitution).
53. Early in the term of office of President Ernesto Zedillo, a proposal was on 31 December 1994 made for the reform of article 100 of the Constitution. The amendment approved by the Congress reads as follows:
... The administration, oversight and discipline of the judicial branch of the Federation, with the exception of the Supreme Court of Justice, shall be the responsibility of the Federal Council of the Judicature, as provided by law and in accordance with the provisions of this Constitution."
54. Paragraph 2 of article 100 provides as follows:
The Council shall comprise seven members, one of whom shall be the President of the Supreme Court of Justice, who shall also preside over the Council; one judge from the collegiate circuit courts; one judge from the single judge circuit courts and one district judge, who shall be elected by ballot; and two members appointed by the Senate and one by the President of the Republic. The latter three members of the Council shall be individuals who have distinguished themselves through their ability, honesty and integrity in the field of the law. Members of the Council must fulfil the requirements set forth in article 95 of this Constitution."
55. The IACHR welcomes and values the constitutional amendments affecting the judicial branch. These amendments are evidence of a strong desire for change and improvement in one of the key institutions of a State subject to the rule of law and particularly for the protection of human rights at the national level. The Commission hopes that these changes would be pursued and expanded in order to effectively guarantee the proper functioning of the judicial branch and its role in the protection of human rights.
56. The Commission is also of the view that, notwithstanding the progress achieved, the executive branch retains its excessive legal and extralegal powers over the judicial branch. As long as this situation lasts, it will be impossible for Mexico to have fully independent and impartial courts, despite the existence of a constitutional system based on a balance of powers and despite the international treaties signed by Mexico which expressly provide for an independent judiciary.
C. The states of the Union
57. The people exercise their sovereignty through the powers of the Union in those cases within its jurisdiction, and through those of the states, in all that relates to their internal affairs, under the terms established by the Federal Constitution and the individual constitutions of the states, respectively, which latter shall in no event contravene the stipulations of the Federal Pact (art. 41 of the Constitution).
58. For their internal government, states are required to adopt the popular, representative, republican form of government, with the "free municipality" as the basis for their territorial division and political and administrative organization (art. 115 of the Constitution).
59. Exercise of the powers of government in the states is divided between the executive, legislative and judicial branches. No two or more of these powers may be exercised by the same person or corporation, nor may legislative authority be vested in a single individual (art. 116 of the Constitution).
60. The branches of government in the states are organized in accordance with the constitution of each state, subject to a set of principles set forth in aforementioned article 116 of the Constitution. In the first place, executive authority is exercised by the governors of states, who may not hold office for more than six years. The election of state governors and local legislatures is by direct popular vote and in accordance with the provisions of the electoral laws of the respective states. State governors who are popularly elected in regular or special elections may in no case and under no circumstances whatsoever hold office a second time, not even on an interim, provisional, substitute or acting basis.
61. Legislative power is exercised by the respective state legislature. The number of representatives in the state legislature is proportional to the number of inhabitants of each state, but in no case may be less than seven deputies for states with populations of under 400,000; nine for states with populations of between 400,000 and 800,000; and eleven for states with populations of over 800,000. Deputies to state legislatures may not be re-elected to a consecutive term. Alternates may be elected to a consecutive term as titular deputies, provided that they have never served in that capacity. However, titular deputies may not be elected to a consecutive term of office as alternates. State legislatures are comprised of deputies elected by a plurality and by proportional representation, in accordance with the relevant statutory provisions.
62. Judicial power in the states is exercised by courts that are established by the constitutions of the respective states. The independence of the magistrates and judges in the exercise of their functions must be guaranteed by the constitutions and organizational laws of the states, which establish the conditions for the entry, training and service of functionaries in the judicial branch of the respective state. Judges in local judiciaries must fulfil the requirements set out in article 95 (sections I to V) of the Constitution. In appointing the magistrates and judges to serve as the local judicial authorities, preference is given to those persons who have served effectively and with integrity in the administration of justice or who merit appointment by reason of their integrity, competence and experience in other branches of the legal profession (art. 116 (II) of the Constitution). The term of office of magistrates is determined by the provisions of the respective state constitution (art. 116 of the Constitution).
63. In recent years, Mexico has witnessed an alternation of political parties in a number of states of the Union and in the Federal District, which has contributed to the evolution and further development of its democratic institutions. In that context, mention must be made of the victory of Ernesto Ruffo Appel, candidate of the PAN, in the elections for Governor of Baja California in 1989. The importance of this event lies in the fact that it was the first time an opposition politician was declared the winner in a governatorial race since the PRI came to power in 1929. The process was consolidated in the 1997 elections (in which a major opposition (PRD) figure was elected as Head of Government of the Federal District), which was testimony to the open and competitive nature of elections in Mexico. This evolution has led to the emergence of an important mechanism for the division and control of power in Mexico, where no longer one but several political parties exist, depending on the particular territorial political entity in question. This means that political parties that are in opposition at the national level may be the governing party at the district or state level. Despite this, certain institutional problems of a structural nature persist at the state level (prison system, judicial power, public services, etc.) and overcoming these problems represents a major challenge for the political system of Mexico as a whole.
D. Office of the Public Prosecutor
64. While the imposition of punishment is the sole and exclusive responsibility of the judicial authority, the investigation and prosecution of criminal offenses is the responsibility of the Office of the Public Prosecutor assisted by a police force which comes under its authority and immediate jurisdiction (art. 21 of the Constitution). Both the task of investigation and the institution of criminal proceedings and the bringing of charges are the sole and exclusive responsibility of the Office of the Public Prosecutor. Consequently, a judge before whom a criminal action is brought may not unofficially put forward evidence of an offense or of the guilt of the accused, nor may he commence the trial unless the above-mentioned action has been brought, or continue the proceedings if the action has been withdrawn. These provisions are based on article 20 of the Constitution, which establishes the guarantees of the rights of the accused during both the preliminary investigation and the subsequent criminal proceedings.
65. Officials of the Office of the Public Prosecutor of the Federation are appointed and dismissed by the Executive, in accordance with the relevant statutes. The Office of the Public Prosecutor of the Federation is headed by the Attorney-General of the Republic, who is appointed by the Federal President, subject to ratification by the Senate or, when the latter is not in session, by the Permanent Committee. The Attorney-General must: be a Mexican citizen by birth; be at least 35 years old on the date of his appointment; have received a professional law degree at least 10 years prior to his appointment; be of good repute; and have never been convicted of any criminal offense. The Attorney General may be removed from office at the discretion of the Executive (art. 102 of the Constitution). The main elements of this schema are observed in the organization of the Office of the Public Prosecutor in each one of the member states of the Union.
66. The IACHR will reserve its comments on the role of the Office of the Public Prosecutor for the analysis which it offers in chapters IV and V of this report, which will discuss the rights to personal integrity and justice. It nevertheless wishes at this point to reiterate the earlier comments it had made on the matter in the communiqué issued at the end of the on-site visit paid to Mexico in July 1996, namely, that "the monopoly which the Office of the Public Prosecutor of Mexico exercises over proceedings in criminal cases makes it essential for that institution to be independent, autonomous, professional, efficient and impartial."
II. THE MEXICAN CONSTITUTIONAL SYSTEM AND HUMAN RIGHTS
67. Since the 1917 Constitution, human rights in Mexico have been understood as a set of individual, social and economic rights that the State guarantees to the population of its territory. In arriving at this definition, the meaning of the concept of "rights" as it is understood in public law was used in the sense of the protection or security granted to individuals under the rule of law.
A. Rights of the individual
68. The Commission considers rights of the individual in the context of the legal relationship that exists between individuals as physical persons and the State as a legal and political entity. The active subjects of rights of the individual are all the inhabitants or individuals living in the national territory, irrespective of immigrant status, nationality, sex, civil status, etc. In keeping with this notion, article 1 of the Constitution provides: " Every person in the United Mexican States shall enjoy the guarantees granted by this Constitution...."
a. Right to equality
69. The concept of equality as intrerpreted by the IACHR means that the authorities of the State are obliged to consider all individuals as human personalities and to treat them equally in law and in fact without distinction as to race, religion, nationality, economic, cultural or social status, etc. The right to equality is provided for in the following articles of the Political Constitution of Mexico: Article 1 ("Every individual in the United Mexican States shall enjoy the guarantees granted by this Constitution...."); Article 2 ("Slavery is forbidden in the United Mexican States...."); Article 4 ("Men and women are equal before the law."); Article 12 ("No titles of nobility, or hereditary prerogatives or honors shall be granted in the United Mexican States, nor shall any effect be given to those granted by other countries ...."); Article 13 ("No one may be tried according to private laws or by special tribunals. No person or corporate body shall have privileges or enjoy emoluments other than those given in compensation for public services and which are set by law.")
b. Guarantees of freedom
70. The Commission considers freedom an inalienable right of all individuals, which may be defined as the ability to attain legitimate material and spiritual goals and to choose the most appropriate means for doing so. The following freedoms are enshrined in the Constitution of Mexico: freedom to work, which consists of engaging in the occupation for which one is best suited for fair remuneration (articles 5 and 123); freedom of expression, which refers to the freedom to express ideas which is guaranteed by the State (article 6); freedom of the press, which means that no law or authority may provide for prior censorship or restrict the freedom of press (article 7); the right to petition: every petition shall be replied to in writing by the official to whom it is addressed, and the said official is bound to inform the petitioner of the decision taken within a brief period (article 8); freedom of assembly and association, which is defined as the right to associate for any lawful purpose (article 9); freedom to have arms in their possession in their homes for their protection and legitimate defence, except such as are expressly forbidden by law (article 10); freedom of movement: everyone has the right to enter and leave the Republic or to travel through its territory (article 11); freedom of religion, which consists of the right to freely embrace the religion of one's choice (article 24); freedom of circulation of correspondence, which guarantees the inviolability of correspondence by mail (article 16, penultimate paragraph); freedom of competition, which is guaranteed by the penalties that may be imposed by the authorities for the hoarding of essential consumer goods (article 28).
c. Right to legal guarantees
71. Legal guarantees are understood by the Commission as the series of de jure and de facto criteria which the acts of any authority must meet before they can lawfully affect the rights of individuals under conditions of certainty, transparency, and predictability. Article 14 of the Constitution provides for four rights of the individual that relate to legal guarantees: iretroactivity of the law, right to a fair hearing, legality in civil and administrative law, and legality in criminal law.
d. Guarantees of legality
72. The IACHR considers that in a State governed by the rule of law, the powers and jurisdiction of the Government derive from the Constitution and the law. The juridical force of these guarantees lies in the fact that any act by the Government of Mexico must be subject to the principle of legality.
73. The principle of legality is guaranteed by the judicial oversight to which it is subject. Thus, for example, final decisions in civil trials must be consistent with the letter or legal interpretation of the applicable legislation and, in the absence of such legislation, must be based on the general principles of law (art. 14 of the Constitution).
74. Furthermore, no one shall be molested in his person, family, domicile, papers or possessions except by virtue of a written order of the competent authority stating the legal grounds and justification for the action taken. (Art. 16 of the Constitution).
e. Right to own property
75. The IACHR understands ownership as a means of legally assigning a thing to a person, whether natural or juridical, private or public, by virtue of which assignment the person has the legal power to use, enjoy and dispose of the thing in question, subject to the limits, restrictions, obligations and taxes provided for in the Constitution, in accordance with the social function of the thing.
76. This right is provided for in article 27 of the Constitution, the first paragraph of which provides:
Original ownership of the lands and waters within the boundaries of the national territory is vested originally in the Nation, which has had, and has the right to transfer title thereof to private persons, thereby constituting private property.
B. Social rights
77. Social rights, which have been enshrined in the Mexican Constitution since 1917, are in the fields of, inter alia, labor, agriculture, education and health.
78. In field of agriculture, these social rights establish a legal relationship between persons active in this sector, who as a group constitute the peasant class and as individuals are members of that class.
79. In matters relating to labor, these rights are set forth in articles 4, 27 and 123 of the Constitution and are concerned with education, indigenous peoples, women, children, health, housing, property in its different forms, labor and social security.
C. International human rights instruments signed and ratified by Mexico, and the reservations thereto
80. As of the date of preparation this report, the Mexican State has ratified a total of 38 international convention instruments on human rights, several of which will be analyzed and referred to in the respective sections of this report. It should be noted that eight of these instruments have been the subject of one or more reservations or interpretative statements: the American Convention on Human Rights, the International Covenant on Civil and Political rights, the Convention on the Elimination of All Forms of Discrimination against Women, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Status of Foreigners, the Convention on Nationality, the Convention on the Nationality of Women, and the Convention on Territorial Asylum.(5)
81. The American Convention on Human Rights signed in San José, Costa Rica on November 22, 1969, in the Specialized Conference on Human rights, was ratified by Mexico, which deposited the respective instrument in the OAS on March 24, 1981, along with two interpretative declarations and a reservation. The reservation by Mexico was signed on May 23, 1969 and the period of 12 months form the date of notification expired on April 2, 1982, with no objections from the other States Parties to the American Convention. However, the IACHR has not issued an opinion on the compatibility of the reservation and the interpretative declarations with the American Convention, according to the rules of the Vienna Convention on the Law of Treaties. The text of the declaration and the reservation are as follows:
With respect to Article 4, paragraph 1, the Government of Mexico considers that the expression "in general" does not constitute an obligation to adopt, or keep in force, legislation to protect life "from the moment of conception," since this matter falls within the domain reserved to the States.
Furthermore, the Government of Mexico believes that the limitation established by the Mexican Constitution to the effect that all public acts of religious worship must be performed inside places of public worship, conforms to the limitations set forth in Article 12, paragraph 3.
The Government of Mexico makes express reservation to Article 23, paragraph 2, since the Mexican Constitution provides, in Article 130, that ministers of denominations shall not have an active or passive vote, nor the right to associate for political purposes.
82. Despite this, the subsequent reform to the Mexican Constitution, published in the Diario Oficial de la Federación on January 1, 1992, recognized the legal personality of churches and religious groupings. In effect, Article 130(d) provides the following:
Under the terms of the Regulatory Law, ministers of religion may not perform duties of public office. As citizens, they shall have the right to vote, but not to be elected. Those who have ceased to be ministers of religion, in accordance with the timing and manner provided by law, may be elected.
83. In the United Nations system, it should be noted that the instrument of ratification of the International Covenant on Civil and Political Rights was deposited by Mexico on March 23, 1981. At that time, the Mexican State issued "interpretative declarations" to articles 9.5 and 18, and entered reservations to articles 13 and 25.b, the text of which follows:
Article 9, paragraph 5. In accordance with the Political Constitution of the United Mexican States and its laws and regulations, any individual enjoys the guarantees that apply in criminal matters, and consequently no person may be illegally detained or arrested; nonetheless, if any individual suffers an impairment of this essential right because of a false charge or accusation, he has the power, among others, to seek effective and fair reparation, as provided by law.
Article 13. The Government of Mexico has entered a reservation on this Article, in light of the current text of Article 33 of the Political Constitution of the United Mexican States.(6)
Article 18. In accordance with the Political Constitution of the United Mexican States, every man is free to profess the religious belief of his choice, and to practice the religious ceremonies, devotions or acts pertaining thereto, with the limitation, as regards public religious acts, that they must be celebrated within religious premises and, as regards instruction, that no official recognition is extended to studies performed in establishments devoted to the professional instruction of ministers of religion. The Government of Mexico considers that these limitations are included within those established by paragraph 3 of this Article.
Article 25 (b). The Government of Mexico also enters a reservation on this provision, by virtue of the fact that Article 130 of the Political Constitution of the United Mexican States provides that ministers of religion may not have either an active or passive vote, nor do they have the right to enter into association for political ends.
84. The Commission has noted that certain limitations or restrictions on human rights have been suppressed through modifications adopted subsequent to the reservations entered by that country to the international instruments cited above, by virtue of which such reservations are now unnecessary or unjustified. In this respect, the IACHR has conducted a study which concludes that it would be appropriate to withdraw the reservations relating to articles 5 and 6 of the Convention on Nationality, Article 1 of the Convention on the Nationality of Women, Article X of the Convention on Territorial Asylum, Article 18 of the International Covenant on Civil and Political Rights, and Article 12.3 of the American Convention on Human Rights.(7)
85. Among the international human rights instruments ratified by Mexico there is also the Inter-American Convention to Prevent and Punish Torture, subscribed in Cartagena de Indias, Colombia, on December 9, 1985, signed by Mexico on February 10 1986 at the General Secretariat of the OAS, and ratified on June 22, 1987. Similarly, on January 23, 1985, Mexico deposited its instrument of ratification for the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly on December 10, 1984.
86. Mexico has also deposited its instrument of ratification to the Additional Protocol to the American Convention on Human Rights in Matters Relating to Economic, Social and Cultural Rights, the "Protocol of San Salvador", on April 16, 196.
87. Because of its importance, attention should be drawn here to the recently announced decision of the Mexican State to accept the compulsory (contentious) jurisdiction of the Inter-American Court of Human Rights. According to the information available to the Commission, at the date of approval of this report the internal legal procedures for parliamentary ratification of that decision were well advanced. In this respect, the IACHR urges that those procedures be swiftly completed, and the appropriate instrument be deposited with the General Secretariat of the Organization of American States, so that the compulsory jurisdiction of the Inter-American Court can be made effective immediately in Mexico. The Commission strongly welcomes that decision, which will help to strengthen the human rights of the inhabitants of Mexico and to reinforce the inter-American human rights system in its entirety.
D. Status of international treaties under Mexican constitutional law
88. Article 133 of the Constitution provides as follows:
This Constitution, the laws of the Congress of the Union which emanate therefrom, and all treaties made, or which shall be made in accordance therewith by the President of the Republic, with the approval of the Senate, shall be the supreme law throughout the Union. The judges of every State shall be bound to the said Constitution, the laws, and treaties, notwithstanding any contradictory provisions that may appear in the constitution or laws of the States.
89. In accordance with the provisions of the Constitution, treaties shall constitute only "supreme laws". The Constitution formally confers on treaties a legal status that is equivalent to laws in Mexico's internal legal system.
90. Article 133 of the Mexican Constitution was used as grounds for a complaint filed by four National Action Party (PAN) deputies from Nuevo León State to the IACHR, alleging that the State's electoral law of May 1987 violated the exercise of political rights recognized by the American Convention. Among other factors, the IACHR maintained in its decision regarding this case and other similar cases on the subject that the rules of the Convention applied directly to the member states of the Federation, as specified in Article 133 of the Political Constitution of the United Mexican States, and concluded as follows:
The Government of Mexico must fulfil its obligation to adapt its internal legislation so that it would effectively guarantee the exercise of the political rights recognized in article 23 of the American Convention and guarantee a simple, swift and effective remedy, in accordance with article 25 of the Convention, before impartial and independent courts, in conformity with article 8 of the Convention.
91. In the 1997 elections, the citizens of Nuevo León voted in PAN state officials, and those elections were never challenged. Moreover, in cases involving Mexico processed by the Commission in recent years, this argument has not been opposed by the State. It has, as a general principle, recognized the validity and direct applicability of the American Convention in the Mexican legal system.
III. SYSTEMS FOR THE DEFENSE AND PROTECTION OF HUMAN RIGHTS IN MEXICO
92. In accordance with the American Convention, States Parties undertake to respect the rights recognized in the Convention and to guarantee their free and full exercise to all persons under their jurisdiction (art.1.1). States also undertake to adopt such measures as may be necessary to ensure the enjoyment of such rights (art.2). In particular, the Convention recognizes a "right of amparo" through simple, rapid and effective judicial recourse for the protection of fundamental rights (art. 25).
A. Amparo proceedings
93. Amparo is a procedural institution that originated in nineteenth-century Mexico. Its purpose is to protect persons from any official act (broadly construed) which causes harm to a person's legal interests and which is deemed to violate the rights enshrined in the Constitution. Amparo proceedings seek to invalidate the act in question or to render it without effect on the grounds of unconstitutionality or illegality in the specific circumstances in which it occurred. Amparo proceedings may be brought by persons who have suffered harm or who fear imminent harm to their legal interests through any official act which violates any of the rights of individuals or infringes upon the guarantees of legality that are provided for mainly in articles 14 and 16 of the Constitution or which interferes with the system of jurisdiction that exists between federal and local authorities (constitutional disputes).
94. Federal courts have jurisdiction in any dispute that may arise over laws or official acts that violate individual rights; laws or other acts by the Federal Government that violate or infringe upon the sovereignty of the states or upon the jurisdictional authority of the Federal District; and laws or other acts by state governments or by the Federal District which impinge upon the sphere of competence of the Federal Government (art. 103 of the Constitution).
95. Amparo proceedings are always initiated by the aggrieved party and rulings in such cases may provide for measures of protection for private individuals, even though they are limited to providing relief and protection in the particular case that gave rise to the complaint and may not include any general statement concerning the law or act in respect of which the complaint was brought (art. 107 of the Constitution).
96. The Mexican constitutionalist Ignacio Burgoa Orihuela(8) considers amparo to be a constitutional oversight mechanism. Amparo proceedings may be brought before federal judicial organs of the State, in other words, before federal courts (art. 103 of the Constitution). The remedy of amparo is available only to persons under the jurisdiction of the State who have suffered or who fear imminent harm from the violation of their legal rights. Since its inception, amparo has always taken the form of a trial or legal proceedings in which an oversight body is required to settle a legal dispute that consists of determining whether or not the official act that is the subject of a complaint is in violation of the Constitution.
97. The ruling handed down by the oversight body in such trials or legal proceedings by virtue of which the injured party is given protection from a specific act or unconstitutional law has effect only in the particular case in question.
98. Amparo proceedings, according to the Mexican constitutional scholar Héctor Fix Zamudio,(9) is a legal device in Mexican positive law that enables private persons to defend their constitutional and human rights when these are violated or infringed through civil, criminal, administrative or labor disputes, at either the federal or local level. Amparo proceedings may also be brought in land matters, when the collective land rights of a group or community are at stake. In short, the remedy of amparo may rescind the ruling of a court, provide protection against laws and administrative acts and recourse in land disputes.
99. It should be noted that the Attorney-General of the Republic or an agent of the Office of the Public Prosecutor designated by the Attorney-General is a party to all amparo proceedings, except those which are not of any public interest.
100. The Commission is aware of the effectiveness of this legal remedy in the more than 100 years it has been in force in Mexico, as a way of protecting individual guarantees of all persons vis-à-vis acts by the authorities.(10) It also takes note of the following observation by the Mexican State:
…There is a possibility that the rights set forth in international treaties have judicial application, since failure to observe said rights would entail a violation of Articles 16 and 133 of the Constitution, which establish the principle of legality and the legal force of treaties in the Mexican legal system, respectively.
On the other hand, the effects of the so-called "Otero formula" pertaining to the relative nature of the amparo sentences are attenuated by the power given to the criteria of the Supreme Court and the Appellate Courts (Tribunales Colegiados de Circutio) under which such criteria become jurisprudence of an obligatory nature for the rest of the courts of Mexico. This means that if in a concrete case the Supreme Court were to determine that a legal norm is unconstitutional, those affected by that decision may invoke in their favor the ciriterion set forth by that Court in the respective amparo decision…
101. In sum, the complex Mexican institution of amparo is one of the judicial mechanisms for the protection of fundamental rights referred to in article 25 of the Convention. The Commission will observe the development of this institution in Mexico, so that it may ensure that the human rights recognized in the American Convention are fully and effectively protected.
B. Constitutional disputes
102. The amendment to article 105 of the Constitution (which was published on December 31, 1994) granted to the Supreme Court jurisdiction over disputes between the Federation, the states, municipalities and federal agencies. In addition, the reform of August 22, 1996 removed from the Supreme Court the restriction against trying and ruling on actions alleging unconstitutionality in electoral matters. Political parties were also granted the right to bring actions on the grounds of unconstitutionality.
103. The article therefore lists those matters over which the Supreme Court has jurisdiction: constitutional disputes, with the exception of those concerning electoral issues, which may arise between: the Federal Government and a state or the Federal District; the Federal Government and a municipality; the Executive Branch and the Congress; the Executive Branch and either of the chambers of the Congress or, where appropriate, the Permanent Committee, whether as federal organs or organs of the Federal District; two states; a state and the Federal District; the Federal District and a municipality; two municipalities in different states; two branches of the government of the same state over the constitutionality of their laws or general statutory provisions; a state and one of its municipalities over the constitutionality of its laws or general statutory provisions; a State and the municipality of another state over the constitutionality of its laws or general statutory provisions; and two branches of the government of the Federal District over the constitutionality of their laws or general statutory provisions.
104. Whenever the disputes are with respect to the general statutory provisions of the states or municipalities that are challenged by the Federal Government, or to the general statutory provisions of municipalities that are challenged by the states, or in the cases referred to in subparagraphs (c), (h), and (k) of the above mentioned article 105, and in its ruling the Supreme Court declares them to be invalid, then the ruling of the Supreme Court shall have general effect, provided that it has been decided upon with a majority of at least eight votes. In other cases, the decisions of the Supreme Court shall have effect only with respect to the parties to the dispute.
C. Actions on the grounds of unconstitutionality
105. The amendment to article 105 of the Constitution, which was published in the Official Gazette of the Federation on December 31, 1994, is of great importance in that it refers to actions brought on the grounds of unconstitutionality. Section two of the amendment provides as follows: "Actions brought on the grounds of unconstitutionality which allege a possible contradiction between a norm of general application and this Constitution" are heard mainly by the Supreme Court of Justice.
106. Actions alleging unconstitutionality may be brought within 30 calendar days from the date of publication of the norm in question by: at least 33 percent of the members of the Chamber of Deputies of the National Congress against federal laws or laws of the Federal District which have been enacted by the National Congress; at least 33 percent of the members of the Senate against federal laws or laws of the Federal District which have been enacted by the National Congress, or against international treaties entered into by the State of Mexico; the Attorney-General of the Republic against federal, state and Federal District laws, as well as against international treaties entered into by the State of Mexico; at least 33 percent of the members of any state legislative body against laws enacted by the body itself; at least 33 percent of the members of the Assembly of Representatives of the Federal District against laws enacted by the Assembly itself; and political parties registered with the Federal Electoral Institute, through their national leaders, against federal or local electoral laws; and political parties with state registration, through their leadership, exclusively against electoral laws enacted by the legislative body of the state in which they are registered.
107. The Supreme Court of Justice may declare to be invalid laws which have been subject to challenge only if its decision is approved by a majority of at least eight out of its eleven members.
108. The IACHR draws attention to the significant improvement in the Mexican constitutional regime that allows a limited number of bodies and political parties to bring actions before the Supreme Court for review of the constitutionality of laws. However, the IACHR believes that the progress which this constitutional reform represents can be further consolidated by the introduction of a system that permits popular action, that is to say, a system under which any citizen would have the right to have recourse to the competent bodies for review of laws which they claim violate their human rights. Moreover, the Commission's understanding is that the qualified majority of eight judges needed to declare laws unconstitutional is high by universal standards of comparative law, which makes it difficult to have effective oversight in such matters.(11)
D. The National Human Rights Commission
109. Human rights are implicitly recognized in the first chapter of Title One of the Mexican Constitution, which provides for a set of guarantees. Human rights are also guaranteed through international treaties, agreements and conventions which, in accordance with the provisions of article 133 of the Constitution, form part of the supreme law of Mexico.
110. Human rights in Mexico are protected by criminal, administrative, civil and procedural legislation. Of particular note is the legislation governing amparo proceedings, administrative remedies and administrative disputes. Also of special importance are the National Human Rights Commission and the human rights protection bodies of the states of the Federation.
111. The original precursor of the office of "ombudsman" in Mexico was the "Procuraduría de Pobres" or Office for the Protection of the Poor, which was created in San Luis Potosí in 1847. This institution was structured along the lines of the Federal Government on two levels: the state and the national level.
112. There are two instances of recourse. The first is to public bodies created by the National Congress and to state legislatures and the second to the National Human Rights Commission, in the case of complaints regarding acts or omissions of an administrative nature by officials or public servants, with the exception of acts or omissions by the judicial branch of the Federation.(12)
113. The institution of the Ombudsman began to emerge in Mexico at the national level as a branch of the decentralized public administration, through the Human Rights Department of the Interior Ministry, which was established on February 13, 1989. According to the Mexican State, this initiative was defined in the international commitments undertaken by Mexico in the area of human rights.
114. Later, on June 5, 1990, the National Human Rights Commission was created by presidential decree as an autonomous body within the Ministry of the Interior.
115. On June 29, 1992, pursuant to the amendment that inserted a paragraph B into article 102 of the Constitution, the National Human Rights Commission became a decentralized public body, with its own legal personality and budgetary resources. The preamble to the amended text includes the following statement:
The protection of human rights is one of the principles which has guided our independent life and which today has spread to the community of nations.
116. Article 102, paragraph (b) of the Constitution thus provides as follows:
The National Congress and the state legislatures shall, within their respective spheres of competence, establish bodies for the protection of the human rights recognized by Mexican law. The said bodies shall have competence to hear complaints regarding acts or omissions of an administrative nature by any official or public servant, with the exception of the acts or omissions of the judicial branch of the Federation, which violate these rights. They shall make independent, non-binding public recommendations as well as denunciations and complaints to the relevant authorities. The bodies in question shall not be competent in matters of an electoral, labor or jurisdictional nature.
The body to be established by the National Congress shall hear complaints about any inconsistencies that might exist in the recommendations, agreements or omissions of the counterpart state bodies.
117. The National Human Rights Commission is structured like the office of an ombudsman, hence it does not in any way replace the agencies with jurisdiction, i.e. the courts, which are entrusted with procuring and imparting justice. The CNDH is an independent body with the responsibility for overseeing the public authorities. It has the power to receive complaints from the people against public authorities, except in political matters. Therefore, it is not competent to hear electoral disputes. Its decisions are not binding, since they are issued in the form of recommendations; hence they have moral force but are not compulsory. Pursuant to its statutes, the CNDH has access to all official information and documents, and its procedural requirements are minimal.
118. The National Commission is a decentralized body whose main purpose is the protection, observance, promotion, study and dissemination of the human rights guaranteed by Mexican law (article 2 of the statutes of the National Human Rights Commission).
119. The members of The National Human Rights Commission are its president, an executive secretary, up to five general inspectors and as many assistant inspectors and professional, technical and administrative staff as are needed to discharge the mandate of the Commission. In order to better fulfil its responsibilities, the Commission is assisted by a Council (article 5 of the statutes of the National Human Rights Commission) The President of the Republic nominates the President of the National Human Rights Commission and submits the nomination to the Senate (or to the Permanent Committee of the Congress when the Senate is in recess) for confirmation (article 10 of the statutes of the National Human Rights Commission).
120. The National Human Rights Commission has competence throughout the territory of Mexico to hear complaints regarding alleged violations of human rights where such violations are attributed to the authorities or public officials of the Federal Government.
121. Cases of alleged violations of human rights which are attributed exclusively to the authorities or public officials of state governments or municipalities are, in principle, heard by the bodies charged with the protection of human rights in the state or municipality in question, unless otherwise provided in article 60 of the Statutes of the Commission.
122. The IACHR acknowledges the valuable work accomplished by the National Human Rights Commission for the protection and promotion of the human rights of Mexicans in its almost seven years of existence. This is reflected in a Mexican public that is now more informed and aware of their rights and in the existence of a positive climate in terms of the possibility of appealing to a body dedicated to the protection of their rights. In this connection, it might be useful to quote from the statement released by the IACHR in its communiqué of July 24, 1996, at the conclusion of its on-site visit to Mexico, that
the IACHR welcomes the process in which institutions and rules designed to promote and protect human rights have been put in place. The IACHR has noted the commendable work being done by the National Human Rights Commission and finds it very encouraging that more than 60 per cent of its recommendations are implemented and publicly debated.
123. The IACHR has been informed of the observations and criticism expressed by certain representatives of non-governmental organizations regarding the work and activities carried out recently by the CNDH. The IACHR stresses the institutional importance of the CNDH in promoting and protecting human rights in Mexico.
124. Nevertheless, the IACHR believes that it would be appropriate to look into the reform of the regulations in force governing the appointment of the President and Advisors of the CNDH. Under the present system, the head of the CNDH is appointed by the President of the Republic, with the approval of the Senate or the Congressional Standing Committee, if the Senate is in recess. In view of the fact that the political party of the President of the Republic is also the party that has held a clear majority in the Senate for the past six decades, the decision of the person at the head of the Executive Branch is a determining factor in that appointment. This imbalance could affect the autonomy and independence of that institution and its ability to perform the delicate functions assigned to it. Therefore, the IACHR takes note of the following information provided by the Mexican State:
At the present time, consultations and talks are being held nationally regarding the possibility of amending the law regulating the work of the CNDH, for the purpose of strengthening its functions, expanding its powers, and changing the way in which its head is designated.
E. State human rights commissions
125. Transitory article 2 of the decree that incorporates a paragraph (b) into article 102 of the Constitution provides as follows:
State legislatures shall have one year from the date of publication of this decree to establish agencies for the protection of human rights.
126. This provision has been implemented, since every state currently has agencies for the protection of human rights, which in some cases are referred to as "human rights commissions" (Comisiones) and in others as the "Office of the Public Prosecutor" (Procuraduría).
127. The experience gained by the IACHR during its on-site visit to Mexico in July 1996 showed that there was a marked difference between the State Human Rights Commissions and the National Human Rights Commission. The budget allocated and the available infrastructure and human resources varied widely.
128. Likewise, the IACHR noted during the interviews conducted at the time of its visit that the Mexican people have little confidence in the effectiveness of the work performed by these state commissions, and are skeptical with regard to the political independence of the members of these commissions. This is reflected in the large number of cases in which citizens ask the CNDH to exercise its attraction and review powers. It is important to bear in mind that the state commissions are the ones competent to receive the initial complaints presented against the officials or officers of their state, and so they should play a leading role in promoting and protecting human rights within their sphere of competence. Otherwise, if the people have to wait until another institution solves the problem, it would cause unnecessary delays in resolving human rights violations affecting citizens and residents.
129. In light of the above, the IACHR deems it necessary, as has been pointed out by various representatives of civil society and of the Mexican State, to strengthen the work of the State Human Rights Commissions in order to ensure that any recommendations they make would have the confidence of the people of the states in question.
2. Jorge Carpizo, "Notas sobre el Presidencialismo mexicano" (Notes on the presidential system of Mexico) in the book by the author entitled: Estudios Constitutionales, National Autonomous University of Mexico, Mexico, 1991, pp. 339 and ff. See also Jorge Carpizo, El Presidencialismo Mexicano, Mexico, 1994; and the contributions of various authors in El Sistema Presidencial Mexicano (Algunas reflexiones) (The Presidential System of Mexico) (Reflections), National Autonomous University of Mexico, Mexico, 1988.
3. This situation was changed by the consitutional reforms of 1994 and 1996, which provide for the direct election by popular vote of the mayor of Mexico City.
4. Miguel de la Madrid Hurtado, Estudios de Derecho Constitutional, Mexico, 1986, pp. 248 and ff.
5. See National Commission on Human Rights, Reservations by Mexico to international human rights instruments, Mexico, January 1996.
6. Article 33 of the Mexican Constitution establishes that:
Foreigners are those persons who do not have the qualities determined in Article 30. [A foreigner] is entitled to the guarantees granted by chapter I (1) of this Constitution, but the Executive of the Union has the exclusive power to cause a foreigner to leave the country, immediately and without the intervention of a court, if the presence of that foreigner is deemed undesirable.
7. CNDH, op.cit.,, page 89.
8. Ignacio Burgoa Orihuela, El Juicio de Amparo, Mexico, 1986.
9. See, inter alia, Héctor Fix Zamudio, Justicia Constitucional, Ombudsman y Derechos Humanos (Constitutional justice, the office of ombudsman and human rights), National Human Rights Commission, Mexico, 1993. And by the same author, Estudios sobre el Derecho de Amparo (Studies on the right of amparo), National Autonomous University of Mexico (UNAM), Mexico, 1993.
10. in that respect, the Mexican Commission for the defense and Promotion of Human Rights has stated:
The data submitted by Dr. Héctor Fix Zamudio reveal that between 1974 and 1994, 90% of the amparos filed were dismissed without a merits decision; in 7% of the cases the request for amparo was denied on the grounds that the acts impugned were not unconstitutional and only 3% of the claimants were protected. By no means must it be understood that 97% are respectful of individual guarantees but rather that the amparo is inefficient as a means of protecting such guarantees.
CMPDH, Los Derechos Humanos en México, document presented to the IACHR, Serie Documentos No. 11, April 1998, p. 8.
11. In countries of the western hemisphere, as in European countries, in order to declare a law unconstitutional, the absolute majority of the members of the Supreme Court or the supervisory institution under the constitution is required. See, inter alia, Allan Brewer Carías, Judicial Review in Comparative Law, Cambridge University Press, London, 1985. In its comments on this report, the Mexican government argued that the provision according to which a special majority of eight magistrates is required to declare a law unconstitutional"…gives Mexicans the security that the decision made is absolutely irrefutable, and there is no possibility of deceit. In this regard, Mexican is in the vanguard."
12. On this point, in its comments on this report, the government had the following to say:
…as of 1992, the jurisdiction of the federal and local authorities was clearly established, as were the requirements to be met in order to file complaints or objections, and the special cases in which the National Commission may exercise its power of attraction.