The Mexican State on Trial
The Mexican State on Trial
Tuesday, May 07, 2002
[translated by irlandesa]
In an event unprecedented in the political and judicial history of Mexico, the Supreme Court of Justice of the Nation is facing the challenge of resolving more than 330 constitutional challenges, which have been lodged by municipalities in eight states, against the indigenous constitutional reform which was approved by the Legislative branch. The councils are charging all the legislators in the country, and the President of the Republic himself, with having violated the Constitution and the rights of the Indian peoples. The future of relationships between the indigenous and the State, and, beyond that, peace in Chiapas, are at stake in the Court's decision. The resolution of many political, agrarian, economic, religious and cultural conflicts throughout the country will be dependent on this resolution.
* JesÃºs RamÃrez Cuevas *
During these unprecedented times which the country is going through, the Supreme Court of Justice of the Nation (SCJN) has a crucial role to play. This precedent is presenting the Court with the constitutional objections which have been presented by municipal officials against the constitutional reform on indigenous rights. The councils are charging all the legislators in the country who are part of the "Permanent Constituent" with having violated the Constitution and parliamentary procedures, and the President of the Republic with having published the legal changes.
Starting in June of last year, more than 330 indigenous municipalities in Oaxaca, Chiapas, Guerrero, Veracruz, Puebla, Morelos, the State of Mexico, MichoacÃ¡n and Jalisco filed constitutional objections, asking the Supreme Court to invalidate the so-called "indigenous law," which was approved by the Congress of the Union and a majority of state legislatures. It should be pointed out that more than 60% of the country's indigenous live in those states which have filed objections, and at least 30 of the 56 Mexican Indian peoples reside in the plaintiff municipalities.
The Miguel AgustÃn Pro Human Rights Center which, along with a group of lawyers, has been advising 40 of these legal appeals, systematized the principal arguments that are being presented to the SCJN: "Through the reform which was approved, the legislators and the federal Executive branch violated procedures for reforming the Political Constitution, which are contained in its Article 135, as well as the organic laws of the legislative branches of several states, by not carrying out the requirements which are in place for a reform process."
Thus, the Center said, "the State cancelled rights which were already recognized in the supreme law, and it failed to carry out international agreements which have been signed by Mexico, such as [Article] 169 of the International Labor Organization (ILO)."
During the process of compiling the actions, the SCJN asked the dissident municipalities to file with their state congresses, "because they are the decision-making bodies in the reform in question."
Political Judgment with Judicial Consequences
Various specialists who were consulted agreed that this is the first time that a sector of society has challenged a constitutional reform through constitutional means. The fact becomes even more relevant when one considers that it is a part of the population that has been most afflicted (according to federal government figures, 93% of indigenous are living in poverty) and most excluded from the political, economic and cultural life of the nation.
Francisco LÃ³pez BÃ¡rcenas, co-author of the book Indigenous Rights and Constitutional Reform in Mexico, is categorical in this regard: "The indigenous municipalities are charging the Mexican State. The future of relationships between the Indian peoples and the nation are in the hands of the Supreme Court. This charge is like a political judgment which will be judicially resolved. The Judicial branch has the obligation to restore the State of law. We are not questioning the reform itself, but rather the approval actions which violated the Constitution, and for failure to carry out the obligations of the State."
The indigenous feel aggrieved, stated LÃ³pez BÃ¡rcenas, a Mixtec lawyer who is advising several objections. "The Legislative branch," he said, "did not listen to them, and it approved the reform without consulting them. Along with the Executive, they closed the door to them, in legal and political terms, for defending their rights. The Court could open that door. That is why they are appealing to the ultimate power of the State to correct that injustice. The constitutional order was broken by both powers, and only the Court can reestablish it. In this sense, this legal battle is putting the democratic system in its entirety to the test."
Aurora de la Riva, of the Pro Center's legal staff, emphasized that, with this judgment, "the Indian peoples are making innovations in citizens' and constitutional matters. This is historic. Its transcendence is that it is setting a precedent of monitoring and oversight by citizens concerning decisions of the Congress and of the Executive. The indigenous are a step ahead, giving the Court and the nation a political and civics lesson."
In the political context, stated LÃ³pez BÃ¡rcenas, "the affront to the indigenous is greater because the Legislative branch rejected the demand of the most important popular mobilization of the last few years, which was the zapatista march. Its objective was to promote a constitutional reform based on the San AndrÃ©s Accords, as contained in the proposal by the Commission of Concordance and Peace (Cocopa). It didn't matter to the legislators that this proposal had been discussed and backed by the main Indian organizations and peoples in the country."
Hugo Aguilar, a lawyer for the Mixe Peoples Services, noted that "never before had a legislative proposal obtained such support from the population. The zapatista consulta got more votes in Oaxaca than even JosÃ© Murat got for governor (in the entire country, close to three million citizens voted in the EZLN consulta)." Because of that, he warned: "Even though the arguments that the Court will use will be legal, its decision will be political. Its interpretation will influence future constitutional reforms."
After the initial disillusionment produced by the legislative decision, indigenous organizations and representatives of all political leanings opted for taking constitutional measures in seeking its cancellation. This has been so widespread that there is not even any coordination among the defense.
Between July and October of 2001 there was an avalanche of petitions of unconstitutionality, requests for legal protection at the district courts, constitutional objections in the Supreme Court and complaints to United Nations agencies, promoted by ejidos, communities and municipalities in order to challenge the reform. The government and congress of Oaxaca also presented legal appeals against the reform, and they helped the 250 councils in the state present theirs.
As for the legal protection orders which were presented by ejidos and communities, some 20 in seven states, some were rejected by the judges, but others were allowed.
Guadalupe Espinoza, author of an analysis of the issue, explains that, in the international arena, "the ILO accepted three complaints against the Mexican government for violations of its Convention 169, presented by Sitrajor, FAT and the INAH union, in the name of various indigenous communities. Even though the UN agency will be continuing its review, it has already issued a recommendation that the Mexican State approve the Cocopa proposal, 'since it is the consensus of the Indian peoples.' In its official response, the Mexican government asserted that it had signed the San AndrÃ©s Accords based on the ILO's Convention 169, which has not been fulfilled."
Those appeals based on unconstitutionality which had been presented by legislators from various states were thrown out by the magistrates. Local deputies alleged irregularities and violations of the organic law of the congresses of Morelos, Tlaxcala, Oaxaca and Tabasco.
As for the constitutional objections, the SCJN has allowed the majority of them, more than 330 (the OtomÃ community of Texcatepec, Veracruz, whose case was rejected, appealed to the Inter- American Human Rights Commission [of the OAS], the first one to be presented before an international body). In response to the workload, the Court has had to create a Unit of Constitutional Objections and contract for a 35-person team. The volume of paper is enormous, more than one thousand volumes, each with 900 pages. The first objection alone, presented by the municipality of Molcaxac, is made up of seven volumes.
It is under these circumstances that the SCJN will be beginning, on May 6, the hearing phase with the plaintiffs, which will last until June 15. One hearing is scheduled every half hour, and there will be between 7 and 10 per day.
Hugo Aguilar, advisor to some of the objections, has complained that "it's very little time, barely enough to listen to the submissions, but not enough to present evidence. The magistrates have to listen to us, they cannot act as if they already know everything, and that they don't need any more evidence in order to decide. We hope that they are sensitive."
After the hearings, the ministers of the Court will study the arguments and the evidence in order to form a resolution. Although there is no legal time period established, those interviewed have been confident that this could take place in late July.
Irregularities on the Legislative Process
Concerning irregularities committed by the Legislature, Abigail Zuniga, advisor for the municipality of Tlaxiaco, noted: "After Congress approved the reform, the PRI and the PAN speeded up the process in the state legislatures (a legal requisite for the constitutionality of the reforms). On July 18, the Permanent Commission made the official count of the results, despite the fact that not all the legislatures had finished voting, and that two states had not even discussed the issue (Tamaulipas and Yucatan). The Commission totaled 19 state congresses in favor, and nine against (those with a majority indigenous population). Of the 19 states that voted in favor, irregularities and legal violations had been documented in eight (Aguascalientes, Jalisco, QuerÃ©taro, Quintana Roo, Sonora, Tabasco, Coahuila and MichoacÃ¡n). Chihuahua sent its results after the official count, and, despite that, it was included."
Carmen Herrera, coordinator of the Pro Center's legal department, stated in an analysis that "during the process of the reform's discussion and approval, the legislators and the President of the Republic denied the indigenous peoples the right to be consulted on the contents of the reform. This is in contravention of what is established in Article 6 of the ILO's Convention 169, thus violating Articles 14, 16 and 133 of the Constitution and Article 8.1 of the American Convention on Human Rights."
As a consequence of the constitutional reform, Herrera argues, "the form of organization and municipal autonomy was altered, contained in Article 115 of the Constitution and in the organic laws of the petitioning municipalities, without the legislators having given them an opportunity to participate in the discussion and approval process in defense of their interests."
"The ILO's Convention establishes the obligation to 'consult with interested peoples through their representative institutions each time that legislative or administration measures are being planned which could directly affect them'," Aurora de la Riva added.
The Challenges for the "Highest Power"
The Supreme Court's work would appear to be complex. Their resolution must respond to the acts of complaint and decide on the validity, or lack of validity, of the reform. It will also have to render an opinion concerning the "Permanent Commission's" legislative procedures for voting on a constitutional reform. It will, in addition, have to issue a statement on the position of international treaties, signed and ratified by Mexico, within the legal order.
The Pro Center concluded: "While it is true that the SCJN is the highest power in matters of justice in our legal system, it is also so because its range of actions have fundamental aspects which grant content and meaning to its power: its status as guarantor of the State of Law, of the strict respect for human rights; its role as energizer of the law according to the aspirations of society, and its inability to remain apart from the international community's trend towards ending, once and for all, the exclusion and discrimination which the indigenous peoples are continuing to experience. It is not a high power on its own. It is a high power with unavoidable content and imperatives."
"Never before in history has anything similar happened, the indigenous are contributing a new interpretation of constitutionalism in Mexico," stated LÃ³pez BÃ¡rcenas.
The Mixtec lawyer noted that, among the challenges that the Supreme Court is facing, "the most important has to do with its capacity for responding to the indigenous peoples. If it acts in an independent and open manner, as it has done in its most recent resolutions, the Court will be contributing to the democratic development of the country. We are hoping for a progressive resolution, with a vision of the State. If it rejects the demands, it will be closing the legal and political path off to the Indian peoples."
According to the former INI official, "the resolution of many conflicts - such as the war in Chiapas, Los Chimalapas, the community police in Guerrero, the territorial problems in Jalisco, and agrarian conflicts in many parts of the country - are dependent on the SCJN's resolution."
In conclusion, the constitutional objections to the indigenous law have presented the Mexican State with an opportunity for reforming itself, by recognizing the rights of the native peoples as an integral part of the nation, or for perpetuating the inequality and exclusion in which they exist.