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.
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...."
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.")
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).
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.
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).
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.
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.
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:
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:
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:
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.
88. Article 133 of the Constitution provides as follows:
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:
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.
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).
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:
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.
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.
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)
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:
116. Article 102, paragraph (b) of the Constitution thus provides as follows:
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
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:
125. Transitory article 2 of the decree that incorporates a paragraph (b) into article 102 of the Constitution provides as follows:
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.
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.
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.
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."