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 communique 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."
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.