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The United Mexican States: Introductory Note

Rainer Grote
Edited By: Max Planck Institute

© 2017 Oxford University Press

I.  The Origins and the Development of the Mexican Constitution

1.  The Mexican Revolution

The Mexican Constitution of 1917 was the product of an extended period of political turmoil and civil war which later became known as the “Mexican Revolution”. The initial period of the armed conflict ended with the overthrow of the authoritarian government of Porfirio Díaz who had ruled the country since 1876 and his replacement by the liberal Francisco I. Madero. Elected by a huge majority in October 1911, Madero quickly lost much of his political support when he proved unwilling or unable to satisfy the conflicting demands of the different groups which had backed the initial uprising against Díaz. He refused to enact the comprehensive land reforms claimed by Emiliano Zapata and his supporters who in the revolutionary Plan of Ayala called for the wholesale return of lands occupied by the big hacienda owners to the Indian communities. At the same time, his failure to keep at bay the revolutionary forces and to restore public order increasingly frustrated the conservative forces which, after the demise of Díaz, were looking for a new strongman able to protect their interests in the maintenance of the social status quo. The position of the new government steadily deteriorated. New uprisings broke out in the country and industrial unrest spread as workers made use of the new freedoms in order to organize trade unions and call strikes to press for better wages and working conditions. Finally Madero lost the support of the United States when he introduced a tax on oil production, thus sharpening the rivalry between British and US oil companies which were competing for concessions from the Mexican authorities. Against this backdrop of worsening political and economic turmoil, Victoriano Huerta, the commander of the armed forces who previously had suppressed various revolts and coup attempts against the government, decided to change sides and to mount his own coup against Madero. In February 1913 Francisco Madero, his brother and the Vice-President were arrested and assassinated while in custody.

Huerta’s coup opened a new stage in the unfolding of the armed conflict, which more and more developed into a civil war between the traditional ruling oligarchies of Mexico City and the central areas on the one hand and new factions from the northern border states on the other. Although most of the leaders from the Northern border areas, unlike Pancho Villa and Emiliano Zapata, did not fight for programs of radical social reform, the Huerta coup provided them with a number of pretexts for rebellion, the most obvious being the unconstitutional character of the overthrow of the Madero government. Huerta’s extensive concessions to the Church provided the rebels with another pretext, giving them the opportunity to portray their enemies as anti-liberal reactionaries bent on the preservation of a feudal and clerical order whose origins reached back to the days of the Spanish conquista. In March 1913, Venustiano Carranza, the governor of Coahuila, who had been a supporter of Díaz before he switched to Madero, proclaimed the plan of Guadelupe which called for the removal of Huerta from power and a return to constitutional government. By October 1913, the anti-Huerta forces in the north had been organized into a ‘Constitutionalist Army’. At first Huerta succeeded in consolidating his grip on power through military victories, pushing back the insurgents led by Zapata in Morelos and recovering most of the ground in the north and north-east. However, by April 1914 the tide of war began to turn against him. The US, which backed different factions at different stages of the conflict and had not recognized the Huerta government, occupied in April 1914 the port of Veracruz, the major source of revenue for the Mexican government, in response to an alleged affront to the US government by the Mexicans through the arrest of US sailors in Tampico. Seriously impaired by the US occupation of Veracruz, Huerta was no longer capable of resisting the advances of the rebel forces towards the capital both from the north and the south. In July 1914 he resigned and went into exile. When he later tried to re-enter the country, he was arrested in El Paso, Texas, and died in prison.

Although the attempts of the old elites to restore the ancien régime had been dealt a fatal blow with the forced departure of Huerta, the preparations for a convention to arrive at a new political settlement involved considerable wheeling and dealing among the victorious factions. Carranza, who had installed himself in the National Palace as provisional President, wanted to keep Pancho Villa and Emiliano Zapata, whose radical plans for land reform he disliked, away from power. Villa and Zapata, on the other hand, tried their best to outmaneuver Carranza. They succeeded to attract some of Carranza’s own lieutenants, among them Alvaro Obregón, a rancher from Sonora who had led the Army of the North-West and had been the first to enter the capital after the flight of Huerta, to a convention in the town of Aguascalienties which approved the radical plans for redistribution of land to the peasants as proposed in the Plan of Ayala and removed Carranza as provisional President. This success proved to be short-lived, however. In the ups and downs of a turbulent civil war fought in several theatres, Carranza was able to regain the loyalty of commanders like Obregón and to push back the forces of both Villa and Zapata during the year 1915. With their retreat, the danger of a peasant war and a revolutionary upheaval of the established agrarian structures through massive land redistribution vanished. In October 1915 Carranza’s government was recognized by the US, and he was able to proceed with his plans for a constitutional assembly which finally opened in Queretaro on November 21, 1916.

2.  The Work of the Constitutional Convention in Queretaro

The delegates to the convention had been chosen on October 22 in a national election based upon universal manhood suffrage. The delegates included a substantial number of Carranza’s closest collaborators and of military men who had served as state governors under him. But also among those elected were a great number of delegates who had never taken part in the national struggle, in either a military or a civilian capacity. Although a decree issued by Carranza banned as delegates those persons who had aided the enemy by serving as public employees in opposition governments, the Convention represented a broad spectrum of political views and social concepts, from the Zapatistas to the more conservative elements, with the exception of the “old conservatives” still attached to the porfiriato.1

The turbulent origins left their mark on the Constitution, in particular with regard to the entrenchment of social rights, the creation of a strong executive, and the rigid separation of state and church, although this was not yet evident at the start of the Convention. The draft constitution submitted by Carranza to the Convention was essentially a rewording and reorganization of the liberal Constitution of 1857; it offered little social change other than a modest gesture towards some kind of land distribution and several nominal concessions to the working class regarding social welfare. The main innovations concerned the structure of the political system: no reelection for the President or for state governors, direct rather than indirect election for all officeholders chosen by the electorate, the elimination of the vice-presidency, and a change in the procedure for selecting the President in case of his death or resignation. The draft provided for lay education, the joint use of communal indigenous lands (ejidos) and protection against monopolies on articles of prime necessities. Foreigners would be barred from land ownership unless they renounced the protection of their home state. By contrast, the draft did not address a number of economic and social issues which had played a prominent role in the conflict, including the ownership of the subsoil, the property of religious organizations, the agrarian question, or the rights of workers and labor organizations. While the draft Constitution could be considered as an improvement over the existing Constitution in terms of clarity and organization, in no sense could it be viewed as heralding fundamental change. The draft would not remain unaltered, however. In the course of the deliberations it underwent profound changes, sponsored by people like Alvaro Obregón and his supporters who understood that the new Constitution had to go some way in addressing the needs of peasants and workers if social rebels like Zapata and Villa were to be prevented from regaining lost ground. As a result, the new Constitution which was to emerge as a result of the discussions in the Convention proved to be the most radical constitutional document in economic and social terms that had been adopted up to that point.

The work of the Convention on the draft Constitution started with the establishment of the nine working committees, the most important of which was the Commission on the Constitution, charged with the task of presenting a draft of each Article, using the Carranza draft as its basis. While the Commission presented Carranza’s draft articles 1 and 2 without change, Article 3 provoked a major controversy. The draft had enshrined the principle of secular education only for “official” educational establishments, i.e. schools run by the state. The Commission extended the principle to the primary education in private schools, and made the establishment of private primary schools subject to state supervision. Religious corporations and ministers were to be banned from establishing or directing primary education facilities altogether.

The same anticlerical sentiment prevailed with regard to other provisions concerning the relationship between state and church, and in particular Article 130. A part of the Carranza draft under General Provisions, it put all the anticlerical portions of the Constitution of 1857 into one Article. The Carranza draft provided for separation of church and state, forbade the government to establish or prohibit any religion, stipulated marriage as a civil contract, gave the national government broad powers in all religious questions, and allowed for a non-religious oath. The delegates accepted the Carranza proposal almost without changing a word, but added to it a series of provisions which reflected some of the most fervent anti-clerical attitudes of the revolutionaries. The additions denied juridical personality to any church and made all ministers members of a profession and therefore subject to regulation. In addition, they limited the right to construct new churches, forbade any kind of political activity by ministers, denied them the right to criticize government acts or policies, prohibited church-related publications of a political nature, banned political parties of a clerical affiliation, circumscribed the rights of priests to inherit property and excluded the access to trial by jury for those charged with an infraction of any of the above. The proposed amendments were approved unanimously by the Convention, the delegates taking part in the debate vying with each other for the most radical rhetoric on the matter. On its face the Article applied to churches and ministers of all faiths although in reality it was aimed at the Catholic Church and its clergy. It totally eliminated the Catholic Church as a political factor, and confined it to the most narrowly defined of religious dogma.2

Feelings among the delegates ran similarly high on Article 5 of the draft Constitution. The Article prohibited forced labor except that imposed as a penalty by a court, forbade any contract that limited personal or political freedom and limited personal labor contracts to one year’s duration; it also banned monastic orders since their operation ran counter to the above principles. The Commission on the Constitution accepted Carranza’s draft but made an important addition: it included a provision on the working hours which limited the maximum working day to eight hours, prohibited night work of women and children in industries and introduced a compulsory day of rest in every week. It quickly became obvious in the debate, however, that while most delegates sympathized with the proposed amendments, they deemed them to be insufficient to adequately address the needs of the working population. Instead the pressure grew for the elaboration of a whole new title on social and labor rights.

By coincidence, the cabinet minister under whose jurisdiction labor issues fell was a delegate at the Convention, as was his secretary in the office. This minister, Pastor Rouaix, took it upon himself to set up an informal working group, with no official mandate, which discussed proposals for the drafting of one comprehensive article on labor and social rights. During early January in 1917 the group which comprised sometimes as many as fifty delegates, drafted and redrafted a proposal which sought to compress the guarantees needed for the protection of labor into one provision. Finally they submitted their proposal to the Convention which, after much discussion and some minor changes, approved it unanimously as the new Article 123 of the Constitution. This Article, the second longest at the time, constituted, in the words of a historian of the Mexican revolution, “the most enlightened statement of labor protective principles in the world to that date”.3 It established a mandate and framework for the enactment of labor protection legislation by the central government and the States. The main elements of this framework were a maximum working day of eight hours (six for children between 12 and 16), a weekly day of rest, protection of pregnant women, the guarantee of a minimum wage sufficient to satisfy “the normal necessities of life of the worker, his education, and his honest pleasures”, equal pay for equal work, the right to organize and to strike. Moreover, the article stipulated doubly pay for overtime and required the installation of proper safety devices in the working place, the furnishing of adequate housing at low costs and schools when the enterprise was in an isolated area, the responsibility of the employer for work-related accidents and illnesses, provided for a procedure for settling conflicts between employers and employees and encouraged the formation of mutual insurance societies and cooperative housing organizations.

At that stage, the Convention had already come under severe pressure in meeting the deadline set for the completion of its work. According to the schedule fixed by Carranza at the beginning of the constitutional process, the Convention was due to finish its work on January 31, 1917. But by mid-January only half of the Articles in Carranza’s draft constitution had come before the Convention, and of those only 80 percent had been approved. On January 14, the Congress began to meet twice a day instead of once; in addition, the Committee of the Constitution introduced the practice to present whole blocks of the new Constitution to the Assembly, and the delegates in turn voted on as many as six or eight Articles simultaneously.

In these circumstances, the most significant of all constitutional provisions, i.e. those on property and property rights, received even less attention than did others. Only a few delegates had an opportunity to read the provisions before they became part of the Constitution. The original draft Article 27 made only few additions to the relevant provision of the 1857 Constitution. It limited public ownership of real estate, confined corporate property to that needed for its direct operations, barred any church or religious organization from owning or managing any property other than that intimately related to its religious functions, and provided for expropriation on the ground of public utility. Other particularly pressing issues, like those concerning land reform, the public control of the subsoil and foreign ownership, were barely addressed at all. The draft fell far short of the expectations of a substantial majority of delegates. However, faced with severe time restraints, the Commission on the Constitution decided to use the technique it had applied to the redrafting of the Article on labor protection once again. As a consequence Pastor Rouaix again volunteered to chair an unofficial committee to work on the reexamination of the concepts of property and agrarian reform. His committee worked doggedly on the new draft Article for about ten days and presented its proposal on January 25 to the Committee of the Constitution. The Commission used the proposal as a basis for its own discussions but expanded upon it. On January 29 the new draft Article 27 was submitted to the Convention. After a mostly uncontroversial debate of eight hours the Article was adopted by unanimous vote.

The Article marked a revolutionary change in the concept of property rights, clashing with the most traditional doctrines on the matter. It subordinated property rights comprehensively to the needs of society. All big land holdings (latifundia) were subject to expropriation for the purpose of creating small private holdings or community properties (ejidos); towns, villages and communities that lacked lands had a right to receive them through either restoration or dotation. Any land expropriated for the purpose of establishing agricultural communities were to be compensated on the basis of the declared tax value, and the prior owner was obliged to accept twenty-year, five percent bonds in return. Equally important, the Mexican nation declared its direct dominion over all subsoil deposits, including petroleum and all hydrogen carbides, solid, liquid, or gaseous. National ownership of these deposits was to be inalienable and imprescriptible, and concessions for exploitation could be granted only by the national government to individuals or corporations operating under Mexican law. The right of ownership was restricted to Mexicans; foreigners could acquire ownership rights only if they solemnly renounced the aid of their governments in case of difficulty. Failure to keep this promise would be sufficient justification for confiscation. New foreign investments were to be subjected to stringent conditions. In a display of their “deadly fear of wealth and vested interest”,4 the delegates also imposed stringent limitations on the ownership of domestic corporations and entities of any kind: churches, of whatever denomination, could not own or invest in real estate of any kind, and public institutions as well as businesses could own only property which was closely related to their function. In addition, the national government was authorized to revise or nullify any concession or contract made after 1876 (i.e. the year of Díaz’ accession to power) which had as its purpose or consequence the creation of a monopoly over land, water or natural wealth.

The last task of the Convention consisted in the adoption of the Transitory Provisions. These provided for the immediate publication of the new Constitution, elections for President and Congress in the near future and authorized Carranza to issue the necessary decrees for the installation of the new government with a special session of Congress and the inauguration of the new President on May 1, 1917. In addition, the transitory provisions provided for the direct application of the bases established in the Constitution with regard to agrarian and labor reform until such time as the national and state governments passed legislation on these matters. On the afternoon of January 31, 1917, the Convention finished its work by swearing, in the presence of the First Chief Carranza, allegiance to the new Constitution. It was published in the Diario Oficial of the Federation on February 5 and entered into force—save the provisions on the election of the federal President and Congress and of the governors and legislatures in the States, which became effective immediately—on May 1, 1917.

3.  Consolidation and Evolution of the Constitution of 1917

The adoption of the new Constitution, however, did not mark the end of the era of armed conflict and political instability. Although he was elected President in 1917, Carranza failed to implement the far-reaching reforms in the new Constitution and proved unable to restore social order. When he tried to rig the presidential polls in 1920 in favor of a hand-picked successor, Alvaro Obregón revolted against Carranza together with other generals from the North. In the ensuing battle for supremacy, Obregón and the political and military leaders from the North-West emerged as the victors of the violent struggle unleashed by Madero’s rebellion against the porfiriato in 1910. It was to take another decade, however, before bloodshed and violent revolts finally subsided. During this period the bases for the post-revolutionary state were gradually created, by co-opting the new caudillos, i.e. the leaders of the trade unions and the agrarian leagues, into a corporatist political and social order and by creating a revolutionary mythology. Obregon’s successor as President, Pultarco Elías Calles, took the historic decision to “institutionalize” the Revolution by founding the National Revolutionary Party—later to be redesignated as the Institutional Revolutionary Party (Partido Revolucionario Institucional—PRI)—which would put forward the victorious candidate at any presidential election for the rest of the twentieth century.

While the principle of no-reelection was thus nominally reaffirmed, Calles himself succeeded in perpetuating his rule—the maximato—by ruling through proxy. It was left to the administration of Lázaro Cárdenas (1934-1940) to give the self-perpetuating, one-party state its definitive shape. Cárdenas perfected the mechanism for transferring power at the apex of the state by strictly implementing the term limits for Presidents. Proxy rule through stooges which had been the preferred instrument of his predecessors to perpetuate their powerful position would no longer be accepted. The Mexican President would be all-powerful, but once his six years in office had been completed, he would be required to step down for good. While he would be given the opportunity to select his successor, this choice would have to be made in consultation with the bosses of the various branches of the party—agrarian, labor, military and popular—so as to arrive at an internal consensus which would also reflect the moot of the party’s grassroots and of the country at large.

Cárdenas also executed the legacy of the revolutionary period in other respects. He made an energetic effort to implement the social provisions of the 1917 Constitution through renewed agrarian reform which led to the massive redistribution of agrarian lands to small-holdings, co-operative profit sharing farms and ejidos, i.e. the traditional Indian communal holdings in which the title to land was held by the community which then leased out lands to individual communities. In another important step, Cárdenas nationalized the oil industry, thus putting an end to the meddling of foreign oil companies in Mexican affairs and giving meaning to the claims of ownership of the Mexican State to the subsoil enshrined in the 1917 Constitution.

Cracks in the seemingly permanent rule of the PRI only began to appear in the 1980s when a severe financial crisis called into question the model of state-induced economic growth which had underpinned PRI rule for half a century. Faced with calls for structural economic reform, the PRI was no longer able to close ranks and to sustain its grip on the corporatist state it had created. A turning point came with the presidential elections of 1988 when the official candidate of the PRI, Carlos Salinas de Gortari, was challenged by Cuauthémoc Cárdenas, son of popular former President Lázaro Cárdenas (see I. 3. above) who had previously resigned from the PRI and registered as candidate for the independent left-wing coalition Frente Democrático Nacional. Although Salinas was declared the winner, the electoral process was beset by a number of irregularities, including the temporary shutdown of the computer system which had been installed to count the votes on election night. Many national and international observers believed that Cardenas, and not Salinas, had won the election.

In the following year, the supporters of Cárdenas’s 1988 presidential bid formed the Party of Democratic Revolution (Partido de la Revolución Democrática, PRD), a leftist party critical of the “neo-liberal” economic policies implemented by the PRI governments of Carlos Salinas and Ernesto Zedillo in the 1990s. During that decade, the PRD was able to win the governorships in several central and southern states of Mexico. It has also been strong in Mexico City where it has governed without interruption since direct mayoral elections were first held in 1997. On the other side of the political spectrum, the National Action Party (Partido de Acción Nacional, PAN), originally founded in 1939 with a strong orientation towards Roman Catholicism, was able to gain new strength in the more liberal climate of the 1990’s and emerged as the dominant political force in the northern parts of Mexico. After more than 60 years in opposition, the PAN and its candidate Vicente Fox won the presidency in July 2000. It repeated this victory in 2006, although in a much more controversial manner when its candidate, Felipe Calderón, defeated his closest contender, López Obrador from the PRD, with a margin of a little more than 0.5 percent. It is only in 2012 that the PRI returned to power at the federal level, with the victory of its candidate Enrique Peña Nieto in the presidential elections. However, as the PRI was unable to secure a majority of its own in either of the two chambers, Peña Nieto has been forced to govern with the opposition parties in Congress in order to secure legislative majorities for his agenda.

4.  The Accelerating Pace of Constitutional Reforms

In the first hundred years of its existence, the Mexican Constitution has been amended more than two hundred and thirty times. According to Article 135 of the Constitution, the enactment of constitutional amendments requires the approval of two-thirds of the members of Congress and of a majority of state legislatures. The rhythm of reforms has increased even further with the centenary of the Constitution approaching, with no less than 31 amendments between February 8, 2012 and February 24, 2017 (see Annex).5 As a result of numerous amendments, the constitutional text, which had already been fairly detailed at the outset, has become bewilderingly complex. One recurrent theme of the amending process has been the modification of the federal distribution of powers. Usually such modifications take the form of an amendment to Article 73 of the federal Constitution which lists the powers of the Congress of the Federation. 78 (!) amendments concerning Article 73 have been adopted up to February 8, 2017, making it easily the most often amended provision of the entire Constitution.

Article 123, which regulates workers’ rights, with 27 amendments, and Article 27, which deals with land reform, with 20 amendments, come a distant second and third. Both provisions have undergone major changes as Mexico gradually started to move away from the model of state-induced economic development since the 1980s and tried to redefine its position in the era of globalization, which in Mexico’s case meant teaming up with its North American neighbors in the North American Free Trade Agreement (NAFTA), which entered into force on January 1, 1994. The process of redefining the socio-economic foundations of the state in order to take advantage of the unfolding regional and global liberalization processes has had a profound impact on the corporatist nature of the Mexican state, favoring the emergence of a more democratic model of politics at the federal level, while at the same time loosening the grip of the center on the periphery.

Both trends have been reflected in a flurry of constitutional amendments. The democratic transition gave rise to the creation of an independent body in charge of regulating and supervising the electoral process at the federal level in 1996, taking those powers out of the hands of the federal government which had previously used them to control and manipulate election outcomes. The Federal Electoral Institute (now the National Electoral Institute) has quickly become not only a symbol of democratic reform, but also a major bone of contention between the various factions vying for political power in the newly pluralized Mexican system (see 2. below). Similarly, the economic and democratic reforms since the early 1990s have strengthened the centrifugal forces within the Mexican federal system, a shift which is reflected by the introduction of the new category of federal entities (entidades federativas) by the constitutional reform of January 29, 2016. This reform has effectively given the capital, Mexico City, full autonomy in the regulation of its internal structure and political-administrative system, putting it on a par with the other Mexican states, subject only to a number of residual powers to be exercised by the Federal Congress in order to safeguard the city’s functions as capital of Mexico and seat of the Union powers.

II.  General Features of the Mexican Constitution

The main principles of the Mexican Constitution are scattered over the constitutional text. Some of these principles, like the separation of state and church (Article 130) and the supremacy of federal law, including the federal Constitution, over state law (Article 133) are to be found at the end of the Constitution, in the title on “General Provisions” (Prevenciones Generales, which in literal translation means “General Precautions”). Important principles concerning the democratic and republican character of the Mexican state are enshrined in the First Chapter of the Second Title which deals with national sovereignty and the form of government. Finally, the issue of the multicultural character of the Mexican nation is addressed in detail by Article 2 which forms part of the introductory chapter on individual guarantees.

1.  National Unity and Multiculturalism

In its original version, the Constitution of 1917 had been silent on the “Indian problem”. While it embraced important goals and aspirations advanced by the indigenous people of Mexico, it studiously avoided any explicit reference to the existence of indigenous communities which could have been interpreted as granting a distinct constitutional status to those groups. The expectation at the time was that the needs of Mexico’s indigenous communities would be best served by their full integration in the mainstream of Mexican society through a policy of assimilation. It was only during the 1980’s that this official policy was seriously questioned. Shortly after taking office in December 1988, President Salinas created the National Commission of Justice for the Indigenous People (Comisión Nacional de Justicia para los Pueblos Indígenas de México) and asked it to submit a proposal for a constitutional amendment establishing the legal basis for a more effective protection of Mexico’s indigenous peoples. The Commission came up with a proposal which for the first time officially recognized the pluriethnic composition of the Mexican nation and required the Federation, the States and the municipalities to enact within their respective competences the laws necessary for the protection of the languages, cultures, customs and specific forms of social organization of the indigenous communities. An amendment to this effect was finally adopted by the Mexican Congress and went into effect on January 28, 1992. A constitutional amendment adopted in 2001 shifted the guarantee of indigenous autonomy from Article 4 to Article 2 and complemented it with an extensive catalogue of political, economic, social and cultural rights of the indigenous communities which incorporates the key guarantees of the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries into Mexican law.6 A further constitutional reform of May 22, 2015 enshrined the right of indigenous women and men to vote and to stand for election in conditions of equality, as well as the right to accede to public office or elected positions to which they have been elected or appointed.

The reformed Article 2 stresses the indivisible character of the Mexican Nation while recognizing its multicultural composition which has its roots in its indigenous peoples. It goes on to define the indigenous peoples as comprising the descendants of the people who inhabited the Mexican territory at the beginning of the (Spanish) colonization and who have at least partially preserved their own social, economic, cultural and political institutions. In determining whether the legislation on indigenous rights applies to any particular person, the self-identification as member of an indigenous people or community shall play an “essential” role. Indigenous communities, on the other hand, are defined by their internal cohesion which transforms them into a social, economic and cultural unit, their relation to a specific territory, and the existence of their own authorities. Article 4 expressly recognizes the right to self-determination of the indigenous peoples thus defined. However, this right can only be exercised within the constitutional framework set up by Article 2 in order to reconcile the aspirations of Mexico’s indigenous peoples with the need for national unity.

Section A of Article 2 guarantees the indigenous people a number of specific rights which give expression to their constitutionally recognized right to self-determination. These include the right to decide freely on their internal political, economic, social and cultural organization; to apply their own system of rules in the resolution of their internal conflicts, to the extent that these rules are consistent with the general principles of the Constitution, its provisions on individual guarantees, human rights and in particular the equal dignity of men and women; to elect their own authorities for self-government, ensuring an adequate participation of women and respecting the Constitution and the sovereignty of the States; to preserve and develop their languages and cultures; to protect their living environment and the integrity of their territories; to have access to the preferential use of the natural resources in their territories, with the exception of the strategic areas designed by the Constitution and subject to the forms of property and land usage established by the Constitution and the rights acquired by third parties or by individual members of the community; to have full access to the court system of the States which includes, in addition to the right to be assisted by translators and counsel who have knowledge of their language and culture, the right to have their customs and cultural particularities to be taken into account by the state courts, insofar as the Constitution permits.

To these rights correspond to a series of specific obligations of the federal, state and municipal governments, designed to secure the effective implementation of these rights, to promote equal opportunity for the indigenous peoples and to eliminate any discriminatory practices which might exist in regard to these objectives. Among other things, the authorities shall stimulate the economic development of the regions where the indigenous communities are living, create better education facilities for their children, promote the access of those communities to communication networks,7 establish social policies to protect indigenous migrants, through actions to guarantee the labor rights of agricultural workers, and consult with indigenous peoples in the elaboration of the national, state and municipal development plans. The federal, state and municipal authorities shall set aside, in their respective budgets, funds specifically earmarked for the fulfillment of these obligations, and shall specify the procedures in which the indigenous communities may participate in the decision making process on how the money is spent. Other communities may claim the same rights and benefits under the Constitution if they can show that they are in a comparable situation; the relevant determination has to be made by the law.

2.  Democracy

a)  General Character of Mexican Democracy

Articles 39 and 40 of the Constitution define Mexico as a “representative, democratic … Republic” in which sovereignty resides “essentially and originally” (“esencial y originiariamente”) in the people from which all public power emanates. A distinctive feature of representative democracy in Mexico is the strict ban imposed on the reelection of state officials at all levels. Article 83 of the Mexican Constitution bars the President from ever seeking or holding that office again after the end of his/her constitutional term. While this ban on reelection of the chief executive is not unusual in Latin American countries, the Mexican Constitution also subjected the members of the legislative branch—Deputies and Senators—to a ban of immediate reelection (thus leaving open the possibility of a candidacy at a subsequent election). The absolute ban on re-election which reflects the historical experience of the porfiriato (see I. 1. above) is designed to exclude the perpetuation of political power. However, its application to the members of the legislative branch has had unintended side effects: it has prevented the accumulation of political and legislative experience in the Chamber of Deputies and Senate, thereby weakening their ability to exercise effective control over the government bureaucracy which is permanent. Similar bans of re-election or immediate reelection were imposed by the Constitution on state governors and the members of state legislatures and even on mayors and members of municipal councils, i.e. on all elected state organs.

This has meant that every six years—the constitutional term of the President, the state governors and the Senators, while the members of Chamber of Deputies are elected for a three-year term—the whole political personnel at the federal, state and municipal level had to be replaced. It is only with the political reform of February 10, 2014 that these restrictions on the re-election of members of legislative assemblies at federal and state level and in the municipal council have been removed: in the future, Senators will be allowed to serve for two consecutive terms of six years, while members of the Chamber of Deputies of the Federation and the state legislative assemblies (as well as the legislative assembly of Mexico City) will have the possibility to serve up to four consecutive terms of three-years (Articles 59, 116, 122). By contrast, the rule that the chief executive—the Mexican President at the federal level and the governors at the state level—shall only serve for one non-renewable term of six years has been kept in place.

Article 40 defines Mexico as a representative Republic. However, the constitutional reform of August 9, 2012 has modified Mexico’s strictly representative system by introducing some mechanisms for popular participation in the political decision-making process. Article 35 VIII now allows for the organization of popular consultations about issues of national importance, upon request by the President of the Republic, at least 33 percent of the membership of either chamber of the Congress of the Union, or at least two percent of registered voters. Article 71 IV gives citizens’ the right to propose new laws, if they gather the support of at least 0.3 percent of registered voters. However, the final decision on the adoption of the proposed law also under the new rules rests with the Congress of the Union. By contrast, the vote in a popular referendum on an issue of national importance which may be triggered by request of the President, of at least 33 percent of the membership of either chamber of the Congress of the Union, or of at least two percent of registered voters, is binding on the national authorities if at least forty percent of registered voters cast their ballot in the referendum. However, a number of topics may not be submitted to referendum, including the restriction of constitutionally recognized human rights, the revenues and expenditure of the State, national security, electoral matters, and issues related to the organization and operation of the army (Article 35 VIII).

The primarily representative character of the Mexican democratic system remains thus unchanged. But Mexico’s representative democracy has undergone fundamental change in the last two decades, moving from a closed system dominated by the PRI to an open system with genuine-multi party completion and independent candidates vying for elective office. The advent of pluralist politics in Mexico has been made possible through a series of constitutional reforms which included the creation of an independent institution, the Federal Electoral Institute (Instituto Federal Electoral, IFE), for the organization and supervision of elections. The responsibilities of the Institute with regard to electoral processes and the federal political parties are laid down in Article 41.

b)  Political Parties and Elections

According to Article 41 the political parties are “entities of public interest”. Their objective is to promote the participation of people in democratic life, to contribute to the integration of national representation and to enable citizens to take part in the exercise of public power, in accordance with the programs and ideas that they postulate. The Constitution tries to distance the parties from special interest groups by expressly prohibiting labor unions and other social and economic organizations to intervene in the creation of political parties.

The constitutional reform of August 9, 2012 has ended the monopoly of political parties on the nomination of candidates for elected public office and allows independent, i.e. non-partisan candidates, at all levels. The reform concluded a long-running debate about the admissibility of independent candidacies in federal elections which had given rise to extensive litigation in the years before, even involving the Inter American Court of Human Rights.8 In the end, the side prevailed which argued in favor of handing democracy back to citizens by reducing the role of the political parties whose credibility had suffered considerably in the view of a large part of the public. Article 35 II now expressly provides for the right of citizens to register as independent candidates for all posts filled by popular election.

Article 41 goes on to regulate two particular important aspects of party activities which cannot be separated from their role in the electoral process, namely the funding of political parties and their access to the media. With regard to the former, the Constitution stipulates that political parties shall dispose on an equitable basis of the means necessary to conduct their activities. It tries to limit the influence of private donors by providing that the funding of political parties must come primarily from public sources. The constitutional rules on party financing in Article 41 II distinguish between three types of activities of political parties: their ordinary permanent activities, their activities related to the competition for votes in election years, and specific activities concerning education, training, socio-economic and political research, and editorial tasks. Public funding for parties’ permanent activities each year is limited to an amount which corresponds to the total number of registered voters multiplied with a certain percentage—at present sixty-five percent—of the daily minimum wage to which workers are entitled in the capital of Mexico City. Thirty percent of this amount shall be distributed among the registered parties on an equal basis, while the remaining seventy percent are allocated in accordance with the respective share of the vote each party has received in the last election to the Chamber of Deputies. Public financing for electoral activities is limited to fifty percent (in years in which presidential elections are held) and to thirty percent (in years in which only the members of the Chamber of Deputies are up for election), respectively, of the total amount of public funding to which each party is entitled for ordinary activities in that year. Finally, public funding for specific activities shall not exceed three percent of the total amount of public financing which is due each year for ordinary activities. The law shall establish the criteria for limiting the expenditure of the political parties’ in their internal primaries and the general election campaigns. It shall also establish the maximum amount which their supporters and militants may contribute, and the sanctions which have to be imposed in the case of non-compliance of the relevant provisions.

Article 41 III regulates the access to the media. As the Constitution now provides for the possibility of independent candidates to run for popularly elected office, it grants them the right to have access to the media for their election campaigns. The right of the political parties to have access to the media and the social means of communication, on the other hand, also applies outside of election campaigns. However, political parties are not allowed to purchase electoral publicity in radio and TV in addition to the time controlled and distributed by the National Electoral Institute. The National Electoral Institute is the sole authority competent to decide on the time which is allocated in radio and television to the national political parties for the exercise of their rights, according to a detailed list of rules found in Article 41 III. A. of the Constitution. These rules include a strict prohibition addressed to political parties and independent candidates to purchase or reserve, by themselves or through third persons, time in radio or television. The prohibition was introduced to satisfy the demands of the leftist PRD party which complained that its candidate in the presidential elections, Andrés Manuel López Obrador, had been the victim of a hostile media campaign financed by private business organizations during the 2006 presidential election campaign. Challenges of the constitutionality of this reform on the ground that it constituted an undue restriction of freedom of expression were rejected as inadmissible by the Supreme Court of Justice in a decision of March 28, 2011 after prior challenges to the article in the federal electoral code implementing the prohibition had failed due to its conformity with the reformed Article 41 III.A. of the Constitution.9

The 2007 reform also introduced a rule in Article 41 III. C. that orders political parties to abstain from political propaganda that denigrate institutions or political parties themselves or that slander individuals. Like the prohibitions on the ban of electoral propaganda financed by private parties, this reform was also questioned in view of its restrictive effects on freedom of expression. By constitutional amendment of February 10, 2014 the scope of this prohibition has been substantially reduced by removing the protection of institutions and political parties from the text, and limiting its application to the slandering of individuals.

c)  The National Electoral Institute (INE)

By constitutional reform of February 10, 2014, the Federal Electoral Institute was transformed into the National Electoral Institute (Instituto Nacional Electoral—INE). As its new name indicates, the Institute’s jurisdiction is no longer restricted to federal elections, but also covers important aspects of local elections, i.e. elections at the state and the municipal level. However, with regard to local elections its powers are more limited. They include electoral training, the registration of voters, the designation and staffing of polling stations and the accounting for the revenues and expenditures of political parties and candidates, but not, crucially, the counting of the votes and the verification and validation of election results. The latter functions are only discharged by the INE with regard to federal elections (see Article 41 V. B. of the Mexican Constitution).

Given its wide powers with regard to the management of electoral processes, the structure and composition of the INE are of the highest importance. The INE is an autonomous public body with legal personality and its own assets which exercises its functions in accordance with the principles of certainty, legality, independence, impartiality, maximum transparency, and objectivity (Article 41 V. A.). It is directed by the General Council composed of a President and ten councilors, elected by the Chamber of Deputies with the vote of two thirds of the members present, on the basis of proposals submitted by the evaluation committee, a technical committee set up specifically for the purpose of vetting candidates for the function of electoral councilor. From among the proposals submitted to it from inside and outside Parliament the committee shall select five candidates which have received the best evaluation for any vacancy on the General Council. The electoral councilors exercise their functions for nine years and cannot be re-elected. The council president serves a term of six years and may be re-elected only once. In addition to the ten councilors and the president, an Executive Secretary and members of the Legislative Branch as well as representatives of the political parties are also sitting on the Council. The total number of politicians sitting of the Council is 18 (with nine councilors representing the Legislative Branch and nine the political parties), which gives the political parties the majority in this important body (the members of the Legislative Branches also representing political parties). Although they are not allowed to take part in the vote, they may nevertheless exercise considerable influence in the Council when they are able to agree on a joint position, as they are entitled to take part in the deliberations and are thus more than mere observers.

d)  The Electoral Tribunal

The establishment of the INE as an autonomous body to manage and supervise elections at the federal, as well as at the local, level is supplemented by the creation of a special judicial body with the power to certify elections and to resolve electoral disputes. According to Article 99 the Electoral Tribunal is the highest judicial authority on electoral matters and a specialized branch of the federal judiciary. The origins of the Electoral Tribunal go back to the constitutional reforms of 1986 which created an electoral court with the power to hear disputes arising from federal elections. Today the Electoral Tribunal forms part of the federal judiciary and is composed of seven magistrates elected by a two thirds majority in the Senate on the basis of proposals made by the Supreme Court of Justice. The magistrates serve a term of seven years and cannot be re-elected. The Tribunal comprises five regional chambers as well as a permanent Superior Chamber, as an appeals court. Its jurisdiction is no longer limited to federal elections, but extends to challenges of definite and final acts or decisions issued by the competent authorities of the federal entities—i.e. the states and Mexico City—regarding the organization or certification of elections or the resolution of any controversies arising from the elections which may have a decisive impact on the election process or its final result (Article 99 IV).

3.  Federalism

In addition to enshrining the principle of representative democracy, Article 40 defines Mexico as a “federal Republic composed of free States, sovereign in all internal matters, and of the City of Mexico, united in a Federation according to the principles of this fundamental law”. The express reference to Mexico City was added by the constitutional reform of January 29, 2016 which also introduced the concept of “federal entities” as a concept that comprises both the States and Mexico City, the capital. While the latter has been given full autonomy in all matters concerning its internal structure and political-administrative organization in a gradual reform process which began in the 1990s and culminated in the constitutional reforms of January 2016, it has not been given the full status of a State in view of its special responsibilities as capital of the United Mexican States and seat of the powers of the Union. Only in the event that the powers of the Union are shifted to another location will Mexico City become a State in the Union with the name Mexico City (see the reformed Article 44 and section V. below).

According to Article 41, the people “exercise their sovereignty through the organs of the Union in those cases within its competence and through those of the States in all that relates to their internal affairs, under the respective terms established by the present Federal Constitution and the individual Constitutions of the States which shall in no event contravene the stipulations of the Federal Pact” (i.e. the Mexican Constitution). The federal system established by the Constitution of 1917 thus reserves the conduct of external affairs to the Federation. By contrast, the States enjoy autonomy in respect of their internal affairs, subject to the provisions of the federal Constitution.

The degree of autonomy granted to the States under the existing constitutional framework is fairly limited, however. Unlike the US or the German Constitution which limit the constitutional autonomy of the States only in general terms by obliging them to preserve a republican and democratic system of government,10 the Mexican Constitution, which is similar to the Indian Constitution in this regard,11 contains detailed provisions on the internal structure of the Mexican states, including the status, structure and powers of the municipalities. In addition, the States’ organs established in accordance with the prescriptions of the federal Constitution wield limited powers.

Like its predecessor, the 1857 Constitution, the Mexican Constitution of 1917 establishes a rigid distribution of powers between the Federation and the federal entities. According to Article 124 which contains the basic organizing principle for the distribution of competences in the Mexican federal system, powers that are not expressly granted by the Constitution to the federal authorities shall be deemed to have been reserved to the States and Mexico City. However, while this basic distribution of powers seems to be quite favorable to the federal entities, the evolution has been rather different in practice. In the political reality of the hegemonic party state created by the PRI, the constitutional principle of federalism was largely superseded through the increasing centralization of power in the federal presidency for much of the 20th century. The dominance of the Mexican President exercised in the era of PRI rule was not limited to the branches of the federal government, but also extended downward to state and municipal powers, namely through control of the nominations of party candidates in state and municipal elections. Although the Constitution does not provide for direct authority of the President over state governments, the Presidents in the past did in fact control state governments and could freely remove governors from power, either through negotiated resignations or by using his control over the constitutional impeachment procedure—which also applies to state governors and officials (see Article 110)—via the PRI-Senate to this effect. President Salinas (1988-1994) managed to remove sixteen, i.e. more than half of the constitutionally elected governors from their post during his six-year term.12

Only when the opposition parties started to gain power in the States through a string of election victories in the 1990s did the constitutionally mandated separation of powers between the federal government and the state governments start to become a reality. But change has largely been confined to the political realm and has not led to a significant modification of the constitutional distribution of powers.

4.  Separation of State and Church

As has already been noted (see I. 2. above), the strict separation between the state and the churches was one of the key concerns of the drafters of the 1917 Constitution. But the confrontational approach adopted by the early governments of the Republic in the implementation of these provisions which culminated in the religious wars of the 1920s and 1930s later gave way to a more cooperative state-church relationship. These changes were ratified by the 1992 constitutional amendments which removed the most stringent restrictions on church activities from the constitutional text. Those restrictions included the refusal by the state to recognize the juridical personality of churches and religious groups, the total disfranchisement of priests and ministers, the treatment of the latter as members of a profession subject to state regulation and the necessity to obtain prior state authorization for the designation of new buildings as places of worship.

While the reformed Article 130 reaffirms the principle of separation of the state and the churches, it establishes a much more hospitable environment for the churches. Churches and religious groups are granted the constitutional right to be awarded juridical personality once they secure the appropriate registration. The reforms have introduced an express prohibition directed to the state authorities to intervene in the internal life and the management of religious associations. The ban of the establishment on religious orders has been abolished, and restrictions on the acquisition of property by churches or religious groups for their specific purposes have been lifted (Article 27 section II). While priests and ministers may not associate for political purposes nor stand in elections nor insult patriotic symbols or oppose the laws and institutions of the country, they now enjoy the right to vote and are no longer considered as members of a profession subject to state regulation.

On the other hand the reforms have upheld the principle that all acts related to the civil status including marriage fall within the exclusive competence of the administrative authorities of the state. Moreover, education at all levels—pre-school, primary and secondary—must be laicist (laica) and has to be kept apart from any religious doctrine. Acts of public worship may only be exceptionally performed outside churches or buildings designated for this specific purpose (Article 24). If private persons and institutions (including religious groups) want to engage in educational activities, they may do so, but only after having obtained an express authorization by the competent public authority which will only be granted if the education provided follows the objectives and criteria established by the Constitution in Article 3, sections II and III. However, the relevant provision does not refer to the principle of secular education—which is contained in section I of Article 3—as one of the criteria to which private education must comply. This leaves room for the establishment of education facilities and institutions run by churches and religious groups in accordance with their basic religious doctrines.

While the most stringent restrictions on church activities have thus been removed from the constitutional text, the constitutional reform of November 30, 2012 has solemnly reaffirmed the principle of strict separation of state and church by including it among the core principles of state organization at the level of the Federation as well as at the level of the federal entities: in addition to being republican, representative and democratic, the Federation (Article 40), the States (Article 115) and Mexico City (Article 122) must have a laicist (laica) structure.

5.  The Diminishing Role of the State in the Economy

The Mexican political experience in the 19th and early 20th century had been marked by frequent external intervention (by European powers as well as the US), often for economic motives. In response, the drafters of the 1917 Constitution adopted a position which was radically hostile to interventions by foreigners into the political and economic affairs of Mexico. Article 33 stipulates that foreigners may not participate in any way in the political affairs of the country. With regard to the economic system, the ownership of the lands and waters within the boundaries of the national territory is originally vested in the Nation which has the right to transmit title thereof to private persons, thereby constituting private property (Article 27, paragraph 1). The public ownership extends to all natural resources of the continental shelf and the submarine shelf of the islands, including petroleum and all solid, liquid and gaseous hydrocarbons (Article 27 paragraph 4). Public ownership of these resources is inalienable and imprescriptible; their exploitation or appropriation by private companies or individuals may only be undertaken on the basis of concessions granted by the federal government. In principle, only Mexicans or Mexican companies may acquire ownership of land or obtain a concession for the exploitation of natural resources belonging to the Nation. By contrast, the acquisition of such titles or concessions by foreign nationals is subject to compliance with the so-called Calvo clause13 which requires them to declare before the Ministry of Foreign Relations that they consider themselves nationals with respect to such property and agree not to invoke the protection of their governments in relation thereto. If they violate this agreement, the acquired property is forfeited to the Nation.

Since the mid-1980s, however, Mexico has followed the path of economic reform and integration into the global economy. Within less than a decade, Mexico was transformed from a closed economy which followed an import-substitution industrialization model into a market-oriented and open economy based on export promotion. The state withdrew from the production process through privatization of state-owned enterprises, with the exception of strategic industries (oil, gas and electricity). The reform process culminated in the ratification of the North American Free Trade Agreement with the United States and Canada which entered into force on January 1, 1994. Although Mexico’s obligations under the NAFTA have been implemented primarily through the reform of ordinary legislation, and in particular the adoption of new Foreign Investment, Industrial Property and Copyright Laws, the impact of the liberalization process has also been felt in constitutional law. The most important reform in this respect has been the modification of the seventy-five year old system of land ownership codified in Article 27 of the Constitution. Under the original provision enacted in 1917 the government was under an obligation to give land to any group of peasants who asked for it. To comply with these requests, it could expropriate land from private owners and transform them into communally owned lands (ejidos). In order to avoid the reappearance of large land holdings, the Constitution prohibited the peasant communities and their members who owned these communal lands from selling or renting them or pledging them as collaterals for loans. They were only given the options of either using the lands themselves or abandoning them and moving elsewhere.

This system was changed fundamentally by the constitutional amendment of January 6, 1992. The reform eliminated the constitutional right to be granted land by the state, based on the assumption that further land redistribution would only result in lower productivity, greater poverty and increased insecurity concerning individual property rights. In addition, the owners of communal lands were allowed to retain ownership of their ejido lands even if they did not cultivate them personally and to sell or rent them to other members of the peasant community. Perhaps even more importantly, owners of communal lands who decide against renting or selling their land may enter into joint ventures with private individuals and companies or long-term production contracts with outside investors. Finally, the reform paves the way for foreign investment in communal lands since it does not limit the possibility to set up a joint venture with ejidarios to Mexican nationals or companies.14 The result has been the liberalization of agricultural lands for private and foreign investment, and thus the revision of one of the key elements of the 1917 revolutionary settlement.

A further important reform which concerned the energy sector was adopted in 2013. The nationalization of the oil industry by the President Lázaro Cárdenas had come to be seen as one of the proudest achievements of the regime created by the 1917 constitution. The reform of Article 27 of December 20, 2013, creates the possibility for the State to conclude contracts regarding the exploration and exploitation of oil deposits and other hydrocarbons with private parties, either directly or through the intermediary of state-owned companies to which the exploration and exploitation of the relevant deposits have been assigned. Similarly, the reform has opened the door to private investment in the electricity industry. While planning and control of the national electricity system remain the exclusive responsibility of the national government, contracts with private parties may be entered into regarding the transmission and distribution of electric energy.

Liberalization has advanced more quickly and comprehensively in the telecommunications sector, where Article 6 recognizes the creation of the conditions of effective competition for the provision of such services as a key principle in the regulation of the telecommunications industry. In addition, the 2013 reforms have created independent national authorities for the regulation and supervision of the energy and telecommunications markets, as well as a Federal Economic Competition Commission to “prevent, investigate and police monopolies, monopolistic practices, economic concentrations and any other restrictions to the efficient operation of markets” (Article 28).

III.  Human Rights Protection under the 1917 Constitution

1.  General Framework for Human Rights Protection in the Mexican Constitution

The Mexican Constitution deals with the protection of human rights in the First Chapter of the First Title. The title of the chapter was changed from “Individual Guarantees (Garantías Individuales) to “Human Rights and their Guarantees” (De los Derechos Humanos y sus Garantias) by the constitutional reform of June 10, 2011. This reform was part of broader shift in Mexico’s human rights policy, and was explicitly intended to strengthen the protection of human rights and to promote a culture that is adequate to achieve that purpose. The reform amended Article 1 which now stipulates that in Mexico all individuals shall enjoy the human rights recognized in the Constitution and in the international treaties to which Mexico is a party, thus elevating rights guaranteed in those international treaties to constitutional status. The courts and public authorities must construe human rights provisions in conformity with the Constitution and the international treaties on the matter, and always give preference to the interpretation which affords the broadest possible protection (la protección más amplia) to the individuals concerned. In terms which recall key principles of the Vienna Declaration of the World Conference on Human Rights of June 25, 1993,15 Article 1 para. 3 stipulates that within their respective jurisdiction, all Mexican authorities have the obligation to promote, respect, protect and guarantee human rights in accordance with the principles of universality, interdependence, indivisibility and progressiveness. As a consequence, the State must take the necessary action to prevent, investigate, sanction, and redress human rights violations.

In addition, respect for human rights has been included among the main goals of Mexico’s education policies. According to Article 3 para. 2, the education imparted by the State shall stimulate in pupils not only love for their country, but also respect for human rights and awareness of international solidarity. It has also been included, along with legality, objectivity, efficiency, professionalism, and integrity, among the principles which shall guide Mexico’s public security institutions and agencies, which in the past have been accused of being involved in egregious human rights violations, in the discharge of their duties (Article 21 para. 9).

The reform has also strengthened the institutional framework for the protection of human rights. It has increased the standing of the National Human Rights Commission and the equivalent commissions in the State by attaching greater weight to their recommendations: All public officials now have a constitutional duty to comply with recommendations issued by the commissions. If they refuse to do so, they have to explain the motives and indicate the legal basis of their refusal, and make them public. The Senate and the State legislatures have the power to summon public officials who have refused to comply with recommendations to appear before them and to explain the reasons for their negative attitude (Article 102 section B.). In addition, the National Human Rights Commission has been granted the power to file actions of unconstitutionality before the Supreme Court to challenge statutes and norms which infringe human rights recognized in the Constitution and in the international treaties to which Mexico is a party. The human rights commissions in the States and in Mexico City can file such complaints against the laws adopted by the local legislature (Article 105 section II. lit. f). A similar power has been granted to the federal agency for the enforcement of the right of access to public information and protection of personal data created by the constitutional reform of January 29, 2016 and the equivalent agencies in the federal entities with regard to laws which infringe the right to public information and protection of personal data (Article 105 section II. lit. h).

The role of international human rights treaties in Mexico’s shift towards a legal and political culture of greater awareness for human rights has been particularly evident in relation to the Inter-American system for the protection of human rights. Mexico ratified the America Convention on Human Rights in 1981 but it took it 18 years to recognize the contentious jurisdiction of the Inter-American Court on Human Rights (IACtHR) under the convention. This proved to be a momentous step, as the IACtHR has developed a broad view of member states’ obligations under the convention. According to the court, all organs and authorities of member states are bound by the obligations derived from the Convention and have to make sure that the effects of the guarantees contained in the Convention are not nullified or adversely affected by the interpretation and application of domestic laws which are contrary to their purpose. In order to comply with this obligation, member states’ courts have to exercise ex oficio a control of the interpretation and implementation of domestic laws and regulations for their conformity with the Convention. When checking the conformity of domestic laws and regulations to the Convention, the national courts shall take into consideration not only the text of the Convention but also the interpretation the Inter-American Court, final interpreter of the American Convention, has given to the relevant treaty provisions.16 Over the years Mexican courts, and particularly the Supreme Court, have proved increasingly receptive to this jurisprudence. Without expressly stating that they are bound by the IACtHR’s interpretation of Convention guarantees generally or at least by those decisions issued by the Court in cases in which Mexico is the defending party, the Supreme Court has clearly taken into account the IACtHR’s rulings when interpreting the relevant domestic laws and regulations. For example, in a series of decisions it has adopted a more restrictive view of the jurisdiction of military courts recognized in Article 13 of the Constitution, holding that military jurisdiction is limited to crimes and misdemeanors committed by soldiers against military discipline and cannot be extended to members of the military who commit ordinary crimes while on active duty. This jurisprudence followed a number of cases in which the IACtHR had found that Mexico’s courts lack impartiality and ordered that human rights violations perpetrated by members of the military should be excluded from the jurisdiction of military courts.17

2.  Civil and Political Rights

Some provisions in Chapter I reflect the historical circumstances in which the Mexican Constitution was drafted and try to shed the last vestiges of the old feudal order which had survived well after the independence from Spain. Article 1 paragraph 2 (the former Article 2) forbids slavery and declares any person who enters the national territory from abroad to be free by virtue of this act alone. Correspondingly Article 15 prohibits not only the extradition of political offenders but also of delinquents of the common order who have been slaves in the country where the offence was committed. Article 12 prohibits the granting of titles of nobility and of hereditary prerogatives or honors by Mexican authorities and excludes the recognition of such titles that have been granted by other countries.

In addition to these provisions with a strong historical flavor, Chapter I contains the essential civil and political rights which form the backbone of national and international human rights protection. These include freedom from discrimination (Article 1, paragraph 3), equality of men and women before the law (Article 4), the freedom of trade and profession (Article 5), the right to education (Article 3), freedom of expression and the press (Articles 6, 7), the right to petition (Article 8), freedom of assembly (Article 9) and of movement (Article 11), inviolability of the home (Article 16), and freedom of religion (Article 24).

Most of the provisions in Chapter I deal with different aspects of the right to a fair trial. They prohibit the conduct of trials before special tribunals (Article 13), the enactment of laws with retroactive effect (Article 14) and the enforcement of rights by means of self-help (Article 17), regulate the conditions for preventive detention (Article 18) and codify the essential guarantees of the accused in a criminal trial (Articles 20 to 23).

The right to life and the freedom from torture do not form the object of explicit constitutional guarantees. But Article 22 outlaws capital punishment and the use of torture for repressive purposes. In addition, the Mexican Supreme Court has derived the right to life, including the right to life of the unborn child, from the references to the right to live in a safe environment and children’s rights in Article 4 and the protection of pregnant women provided for in Article 123 of the Constitution.18 The protection of human dignity, on the other hand, forms part of Article 1 which prohibits discrimination motivated by ethnic or national origin, gender, age, handicaps, social condition, health, religion, opinions, sexual preferences, marital status, or any other discrimination that violates human dignity and has the objective of restricting or diminishing the rights and liberties of persons.

The fundamental rights provisions have been amended over time in order to bring them into line with the changed outlook of public life and new challenges. The fair trial guarantees were altered fundamentally as a result of a comprehensive overhaul of the criminal justice system in 2008. The reform recognized important rights of the accused, such as the presumption of innocence; the right to give evidence to remain silent; the right to know the reasons for one’s detention; the prohibition of holding a detainee incommunicado, of intimidation and torture in detention; the admission of confessions as evidence only if the confession was made in the presence of a lawyer; and the right to a defense. The reform introduced a new oral, adversarial procedure in the criminal justice system which replaced the old inquisitorial procedure: every single hearing in a criminal trial must now take place in the presence of a judge, the presentation of arguments must take place in a public hearing, only those pieces of evidence that are brought to the court in a public hearing may be taken into account, and the public prosecutor has the burden of proving that the accused is guilty. At the same time, the reform established a number of rights of the victim, including the right to participate actively in the criminal trial in support of the prosecution, to challenge the decision of the public prosecutor not to bring charges or to withdraw them, to claim damages and to obtain protection from the prosecution. On the other hand, the reform also introduced a set of special provisions that severely limit the procedural guarantees for persons suspected of involvement in organized crime, including the establishment of special centers for the preventive detention of suspects and imprisonment of convicted offenders related to organized crime. The competent authorities may restrict the communications of persons accused of or convicted for organized crime with third parties, save the access to their defense, and impose special measures of vigilance on persons detained in these establishments (Article 18 para. 9).

Constitutional amendments have also introduced completely new guarantees, like the right to live in an adequate environment (Article 4), or the introduction of a right of access to information which gives everybody free access to any information held by any federal, state or municipal authority without having to show any cause or justification for their use (Article 6).

Recent reforms have seen important institutional changes which are designed to protect and promote the relevant rights more effectively. Relevant reforms include the creation of a National Education Evaluation System to guarantee the provision of quality education services through the systematic evaluation of the performance and results of the national education system at the preschool, elementary, junior high and high school level (Article 3 IX.) and the establishment of a protection agency (organismo garante) to supervise and enforce compliance by public authorities with the right of access to public information and to protection of personal data guaranteed by Article 6.

Foreigners, i.e. individuals which do not have Mexican nationality as defined by Article 30 of the Constitution, are entitled to all human rights and human rights guarantees recognized by the Constitution (Article 33). Whereas prior to the constitutional reform of June 10, 2011 foreigners could be expelled and deported from the national territory at any time if the federal government deemed their further stay to be “inconvenient”, without need for prior legal proceedings, they can now only be expelled in accordance with a statute which regulates the administrative procedure, including the time and place of their detention prior to deportation (Article 33 (2)). But foreigners still may not in any way interfere in the political affairs of the country. The political rights, like the right to vote, to stand for elective office and to join political parties are limited to Mexican nationals (Article 35).

In addition, the constitutional reform of August 15, 2016 has introduced the right to apply for and to be granted asylum. The reform brings the constitutional provisions into line with Mexico’s international obligations, especially those under the 1951 Refugee Convention which Mexico joined in 2000. According to Article 11 para. 2 the status of refugees shall be recognized and political asylum shall be granted in accordance with the international treaties to which Mexico is a party.

3.  Social and Economic Rights

Economic and social rights have played an important role in the Mexican Constitution since it was drafted in 1916/17. Social guarantees are to be found in numerous provisions of the constitutional text. They include, among other things, the right to education, including the right to state education free of charge (Article 3), the right to health protection and the right to decent family housing (Article 4), the right to due remuneration (Article 5), and the right of peasant communities to collective and individual ownership of their communal lands (Article 27). The most comprehensive set of social guarantees, however, is not to be found in Chapter I, but in the Sixth Title of the Constitution on Labor and Social Security. This Title provides the federal legislature with a constitutional mandate to enact a comprehensive program of labor reform. The Constitution itself fixes detailed standards for the labor legislation to be enacted by Congress, including the maximum number of working hours per day, the prohibition of child labor, the maximum number of working days per week, the minimum wage, the principle of equal pay for equal work, the protection of pregnant female workers, the right to strike and the right to lock workers out.

The social guarantees contained in Article 123 are unusual insofar as they are not directed exclusively or primarily to the state, but also to private persons and companies. They have a direct impact on private law relations that are not consistent with the principles and standards defined in Article 123. Employment contracts which impose an excessive workload on the employee, fix wages that are not remunerative or permit the retention of wages as a fine are null and void by virtue Article 123 section XXVII. Hailed as the most advanced regulation of social and labor reform to be found in any Constitution at the time it was adopted, Article 123 has also proved to be extremely difficult to implement and enforce.

Several constitutional reforms in 2011 have included the right to food, water and physical education and sports among the rights guaranteed in Article 4. They have also given constitutional protection to the rights of children by enshrining the principle that their interests shall be given priority in Article 4.

In addition, Articles 25 to 28 codify the basic elements of Mexico’s economic system which, originally at least, favored public interests and group rights over private property rights. Articles 25 and 26 deal with the prerogatives of the state in planning and managing the national economy and does not formulate any individual right. Article 27 establishes the primacy of public or national ownership over private ownership by stipulating that the ownership of lands and water in the national territory is originally vested in the Nation and that private property with regard to both can only be constituted by transmission of title from the Nation to the individual or company concerned. Even where private property has been established, it remains subject to the broad power of the Nation to impose any limitations “which the public interest may demand”. Article 27 also continues to constitute the constitutional basis for the Nation’s claim to exclusive direct ownership of the country’s natural resources, including oil, and the system of communal land holding known under the name of ejido, although the latter has been subject to liberalizing reforms since the 1990s (see II. 5. above). Finally, Article 28 prohibits the establishment of monopolies and the introduction of monopolistic practices. It provides the state with constitutional authority for the management of the economy by authorizing it to determine the maximum prices of products and articles and by allowing the establishment of a state monopoly in the so-called strategic areas of the national economy, which include postal delivery, petroleum and other hydrocarbons, basic petrochemicals, the generation of nuclear energy and electric power. Here again, the emphasis is clearly on the “rights of the Nation”, i.e. on the prerogatives of the state in the management of the economy, and not on individual rights, although the provisions grant some indirect protection to group and individual interests by declaring that neither associations of workers or producers formed to protect their specific interests nor the privileges granted to authors or inventors for the exclusive exploitation of their works or inventions can be considered as monopolies within the meaning of Article 28.

4.  Enforcement of Human Rights

Article 17 excludes self-help as a means to defend a person’s rights and grants everybody quick and complete access to the courts in order to get his or her rights enforced. The court proceedings shall be gratuitous. The Constitution leaves the details with regard to the remedies, the court procedure and the execution of court sentences to federal and state legislation.

a)  The Writ of Amparo

In their case law the Mexican courts had developed early on a special remedy for the purpose of protecting constitutionally guaranteed rights, the amparo application, which was already recognized in the 1857 Constitution and is regulated in Articles 103 and 107 of the present Constitution. The development of the amparo procedure was inspired by the experience of judicial review in the United States, but also by precedents in Medieval Spain where amparo had been a procedural instrument to protect persons from arbitrary detention.19 It is based on three fundamental considerations20: 1. The defense of the Constitution is the task of the judiciary, not of the political branches of government. 2. Judicial intervention through the amparo procedure can only take place upon the petition of a person whose constitutional rights have allegedly been infringed. 3. The eventual declaration of unconstitutionality benefits only the party that triggered the amparo proceedings by petitioning the court for defense of his/her constitutional rights.

Under the present constitutional regulation, amparo relief may be sought before the federal courts against any general norm, act or omission of a public authority that violates the human rights recognized and the guarantees established for their protection by the Constitution and the international treaties to which Mexico is a party (Article 103 I.) An application for amparo must be brought by the injured party, i.e. any person who can show that he/she has a right or a legitimate individual or collective interest and alleges that the challenged act violates the rights recognized by the Constitution and thereby affects his/her legally protected sphere, either directly or by virtue of his/her special position before the legal system. However, if the challenged act is a measure or decision issued by an ordinary, administrative or labor court, the plaintiff must show that he/she has a subjective right which is directly affected. The application for amparo shall be brought before the district judge in whose jurisdiction is located the place in which the act in question is performed or is to be performed (Article 107 VII).

The judgments pronounced in amparo proceedings produce effects only for the petitioner who has requested them and the party against which amparo protection has been sought. The amparo decision is limited to affording the petitioner redress and protection against the defendant in the particular case to which the petition refers. This can lead to awkward consequences if the amparo petition is directed against a law: if the petition is successful, the effects of the law’s application in the particular case are cancelled, but the law remains valid (and continues to be applied if the legislature does not decide to reform or abolish it).21 Critics have long argued that it is evident that this formula of ‘inter partes’ effects creates considerable problems in terms of equality: a statute can be unconstitutional for parties who manage to obtain a favorable decision against the application of the law in amparo proceedings while it remains constitutional and continues to be applied to everybody else. The constitutional reform of June 10, 2011 has therefore finally broadened the scope of amparo judgments in those cases where, directly or indirectly, the constitutionality of a law or other general norm is at stake. If such general norm is held to be unconstitutional on two consecutive occasions in amparo proceedings by the Supreme Court, the latter notifies the authority which has issued the provision. It does so also when other federal courts establish legal precedent by repeatedly22 holding a general norm to be unconstitutional. If the unconstitutionality is not eliminated within ninety days, the Supreme Court of Justice of the Nation shall issue, by a majority of at least 8 out of 11 votes, a general declaration of unconstitutionality (Article 107 II.).

Special rules apply to amparo proceedings which are brought to challenge court decisions, orders and awards. For the application to be admissible in these cases, the ordinary remedies which are established by the law on the matter and allow the cancellation or the modification of the respective final judgment, award or resolution have to be exhausted, unless the law provides for a waiver of the remedies. The petition challenging the judgment, award or resolution ending the trial must invoke the violations of the procedural laws and will only proceed if the alleged procedural violations have been challenged by the petitioner in the trial proceedings by using the remedy or defense motion which the applicable procedural law provides. If the procedural violations are neither invoked in the first amparo petition nor addressed by the competent Collegiate Tribunal ex oficio, they may not be qualified as a violation or be examined ex oficio in later amparo proceedings.

b)  Investigation by the Human Rights Commission

The National Commission of Human Rights and the equivalent commissions in the federal entities also have an important role to play in the monitoring of compliance by public authorities with the human rights recognized in the Constitution and the relevant international treaties, and this role has been strengthened by recent constitutional reforms (see 1. above). According to Article 102 the National Human Rights Commission has the power to investigate complaints of alleged human rights violations by acts and omissions of an administrative nature committed by any public authority or official. It can issue non-binding public recommendations and formulate denunciations and complaints before the respective authorities (Article 102).23 Following the constitutional reform of June 10, 2011 all public officials are under a constitutional duty to comply with recommendations issued by the Commission. If they refuse to do so, they have to explain the motives and indicate the legal basis of their refusal, and make them public. The Senate may then summon the public officials concerned to appear before it and to explain the reasons for their negative attitude (Article 102 section B.).

In addition, the National Human Rights Commission has been granted the power to file actions of unconstitutionality before the Supreme Court to challenge statues and norms (including international treaties signed by the Executive and approved by the Senate) which infringe human rights recognized in the Constitution and in the international human rights treaties to which Mexico is a party.

IV.  Separation of Powers

The Mexican Constitution enshrines the principle of separation of powers in explicit terms: according to Article 49, the supreme power of the Federation is divided into legislative, executive and judicial branches. A single person or body shall not exercise more than one of these powers, nor shall the legislative power be vested in any single individual, except in the case of an emergency under Article 29 (see above III. 4.). Article 116 applies the same principles to the organization of public power at the state level.

1.  The Executive Branch

The Constitution vests the executive power in the President of the United Mexican States (Article 80) who is elected by direct and universal suffrage (Article 81) for a non-renewable term of six years (Article 83).24 As in the United States, the President is elected on a single ballot. In contrast to many systems which provide for a run-off election between the two candidates with the most votes if none of them obtains an absolute majority on the first ballot, the successful presidential candidate in Mexico needs only a plurality of the popular vote. This system may undermine the legitimacy of the winner if the margin between the candidate who comes out on top and his or her closest contender is very slim, as happened in the 2006 presidential election when less than 1 percent separated the winner, Felipe Calderón from the PAN, from the runner-up, Manual López Obrador from the PRD.

The President may only be removed from office on charges of serious common law offences or treason to the nation (Article 108). The charges can only be brought by the Chamber of Deputies with a majority present and voting after having heard the President. They are examined by the Senate constituted as a grand jury. Removal from office requires a two-thirds majority of the Senators present and voting (Articles 110, 111).

The constitutional powers of the Mexican President are enumerated in Article 89. Compared to those enjoyed by the Presidents in other presidential systems they are not at all strong.25 They include the promulgation and execution of laws, the appointment and removal of the government ministers and other public officials, the granting of pardons, the employment of the Armed Forces and the conduct of foreign policy. The President has the power to conclude, as well as to terminate, renounce, suspend and modify international treaties, and to formulate and to withdraw reservations with regard to them. It is clear from the Spanish text that he must submit the treaties to the Senate for approval (ratification). By contrast, with regard to the other acts concerning treaties (termination, renunciation, modification, making of reservations) the President does not need the consent of the Senate. The Constitution defines the main principles which the President shall follow in the formulation and execution of his/her foreign policies. They are identical with the main principles of the UN Charter: self-determination of peoples, non-intervention, peaceful resolution of disputes; prohibition of threats of use of force or use of force in international relations; equality of States; international cooperation for development, and the struggle for international peace and security (section X).

The President has the power to propose laws or decrees (including laws amending the Constitution) to the Congress (Article 71), and may veto bills approved by both Chambers. Such veto can only be overturned by two-thirds majorities in both Houses of Congress (Article 72). The President is also competent to issue the necessary decrees for the execution of the laws (Article 92). But except in cases of emergency he/she may not issue unilateral decrees or executive orders which go beyond the implementation of existing laws. All his/her orders must be countersigned by the competent Cabinet Secretary. This requirement, however, does not imply any form of political control by the latter over the acts of the President since the Secretary of State is responsible only to the President and not to the Congress.

2.  The Legislative Branch

The legislative power is vested in the Congress which consists of two Chambers, the Chamber of Deputies and the Senate (Article 50). The Chamber of Deputies consists of 500 Deputies who are elected for a three-year term. The constitutional reform of February 10, 2014 has abolished the rule that deputies could not be re-elected. According to the reformed Article 59, they may be re-elected for up to four consecutive terms, starting with the elections in 2018. The members of the Chamber of Deputies are elected under a mixed electoral system: while 300 Deputies are elected in single-member constituencies on the basis of the first-past-the-post system, the rest are elected in five multi-member constituencies in accordance with the principle of proportional representation on the basis of a regional list system (Article 53).

The Senate, on the other hand, has 128 members who are elected for a six-year terms. As in the case of the Chamber of Deputies, the constitutional reform of February 10, 2014 has abolished the ban on the re-election of members of the Senate. Starting with the elections in 2018, they will be re-eligible for another term of six years (Article 59). Half of the Senators (64) are elected in the States and Mexico City under the relative majority voting system. 32 Senators are elected using the largest minority principle, which means that the seat to be allocated goes to the candidate heading the list of the political party which has obtained the second highest number of votes in the relevant constituency. The remaining 32 Senators are elected under the system of proportional representation on the basis of a single nationwide multi-member constituency (Article 56).

The most important power of Congress is the power to make laws. Congress adopts its binding decisions either in the form of a law or decree (Article 70). The Constitution treats both types of acts equally (see Articles 71, 72) although rules of a general character will normally be enacted in the form of a law. The powers of Congress are enumerated in Article 73. They have been constantly amended since 1917, reflecting the centralizing trends in politics and administration under successive PRI governments. The powers of Congress include, inter alia, the admission of new states into the Union, the regulation of interstate commerce, the establishment of taxes on foreign commerce and the exploitation of natural resources, the establishment of schools and universities, the organization of the Armed Forces and the National Guard, the declaration of war, the establishment of administrative law courts and the legislation on national security issues. The adoption of the relevant laws and decrees requires the approval of both Chambers. The list is not exhaustive, however. Additional important powers are granted in other provisions of the Constitution, and in particular in Article 123 with regard to labor and social security legislation (see. III. 2. above).

Some powers are reserved exclusively to one Chamber. In the case of the Chamber of Deputies, the most important of these exclusive prerogatives are its budget powers. The Budget of Expenditure and the Law of Revenue are submitted only to the authorization of the Chamber of Deputies (Article 74 section IV). The exclusive powers of the Senate, on the other hand, concern mainly the field of foreign policy and the settlement of disputes of a federal character in and among the States. The Senate is competent to approve the ratification of international treaties and conventions, as well as the decision by the Federal Executive to terminate, denounce, suspend, modify, or amend such treaties, to withdraw reservations to them and to formulate interpretative declarations with respect to them (Article 76 section I), to ratify appointments of members of the diplomatic and military staff (Article 76 section II), to authorize the departure of national troops beyond the national borders (Article 76 section III), to resolve political questions that may arise between the different branches of government in the federal entities (Article 76 section VI), to settle the boundaries of the States if they fail to reach agreement among themselves (Article 46) and to appoint the ministers of the Supreme Court from a short list submitted by the President of the Republic (Article 76, section VIII). Under the new constitutional rules on the formation of coalition governments which will enter into force in December 2018 (see below), the role of the Senate will be strengthened considerably. If the President decides to form a coalition government, approval of the Senate will be needed for the appointment of the Cabinet members, with the exception of the secretaries in charge of foreign affairs and defense (Article 76 section II).

By contrast, the federal government is not politically accountable to the Congress. While the latter may scrutinize the policies of the federal government (see Articles 76 section I with regard to foreign policy), it does not have the means to act directly on the government. If the President disposes of a majority in Congress or if, in the absence of such a majority, he/she declines to enter into a coalition with the parties in Congress which could provide him/her with a legislative majority, he/she retains a free hand in the appointment and removal of Cabinet members (see Article 76 II). The legislature may call the ministers to account only within the framework of the impeachment procedure regulated in Article 110. However, while the responsibility of the President in this procedure is limited to grave common law offences, government ministers may also be held accountable for acts or omissions “detrimental to the public interest”, i.e. for acts of a merely political nature (Article 109 section I).

3.  The Executive-Legislative Relationship

The distribution of powers between the federal government and the federal Congress established under the Mexican Constitution is not unusual for a presidential system. The President is competent to devise the fundamental policies of the Federation and to implement them with the help of the Cabinet and the central administration, while the Congress legislates, approves the budget and controls the policies of the President through the exercise of its powers of consent with regard to certain key decisions (appointment of diplomatic and military staff, ratification of international treaties). The President, on the other hand, may block legislative initiatives that could undermine his policies by using his power to veto legislation.

If the Mexican President has nevertheless held the dominant position in the political system until 2000 when the long era of PRI rule which had emerged at the end of the revolutionary period finally came to an end, this was mainly due to political factors, and in particular to the absence of genuine multi-party competition and the long unfettered control of one political party over all levers of state power (including the legislative branch) of which the President used to be the undisputed leader. This, combined with the fact that the ruling party delegated to the President the power to designate his successor and control key party nominations, gave the executive an effective supremacy over Congress and the judiciary.

With the demise of one-party rule and the emergence of a real opposition in Congress this dominance has vanished, and the Mexican President has lost his ability to impose his political agenda on the other branches of government. This was already evident during the presidency of Vicente Fox (2000–2006) who could not get Congress to support important parts of his reform agenda and was prevented from implementing the controversial measures by executive order by a reinvigorated Supreme Court making full use of its previously dormant constitutional review powers.26 As a majority of one political party in either chamber of Congress, let alone in both chambers, is increasingly rare, recent Mexican Presidents have thus had to rely on informal coalitions in order to push their agenda through Congress. The constitutional reform of February 10, 2014 acknowledges this new political reality and creates the constitutional basis for the formation of formal coalition governments once the next President takes office in December 2018. The amended Article 89 section XVII formally authorizes the President of the Republic to form, at any point during his/her presidency, a coalition government with one or several political parties represented in the Congress. The basis of such coalition government shall be a coalition agreement and a coalition program drawn up by the parties involved. Agreement and program must obtain the approval of the majority in the Senate.

V.  Federalism and Decentralization

1.  Structure of the Federal Entities

a)  The States

The Mexican Federation consists of 31 States (listed in Article 43 of the Constitution) and Mexico City. Article 116 establishes the basic political structure of the States which is very much modeled upon the structure of the federal government. Executive power is vested in the state governors who are elected by direct and universal suffrage for a non-renewable term of six years. State legislatures are mono-cameral and consist of deputies elected in accordance with the principles of relative majority and proportional representation for the term fixed in the respective state Constitution (usually three years). Following the constitutional reform of February 10, 2014, they may be re-elected for up to four consecutive terms (Article 116 section II). The States also have their own court systems.

b)  Mexico City

By way of several constitutional amendments a special system has been established for Mexico City, previously known as the Federal District. Prior to 1997 the central government exercised direct control over the government of the Federal District through a specialized government department headed by a regente appointed by the President. Since 1997 several reforms have gradually elevated its status to that of a quasi-state. The most recent constitutional reform of January 29, 2016 has given Mexico City the status of a federal entity. With regard to most powers and responsibilities regulated by the Constitution, this puts Mexico City on a par with the federal entities formally recognized as States by Article 43. Article 44 now expressly states that Mexico City will become a State in the Union like all the others if in the future the decision is taken to shift the seat of the federal government to another location. According to the reformed Article 122, Mexico City enjoys autonomy in all its internal matters and its political and administrative organization.

The structure of its government is to be regulated in the Political Constitution of Mexico City, which must conform to the principles of republican, representative, democratic and laicist government prescribed in Article 40 of the Federal Constitution for the structure of the federal government and in Article 115 for the State governments. Legislative power is vested in the Legislature of Mexico City whose members are elected by universal, free, secret, and direct vote according to the principles of relative majority in the single-member constituencies and proportional representation in the multi-member constituencies. In accordance with the rules introduced at the federal and state level by constitutional reform in 2014, the Constitution provides that the local constitution shall allow consecutive re-election of the members of the Legislature for up to four terms.

The head of the executive power with the title head of government (jefe del gobierno) is responsible for the public administration of Mexico City. The head of government is elected directly by the population of Mexico City for a term of six years. Whoever has occupied this office once may in no circumstances discharge its functions for a second time, not even in a temporary or provisional capacity. Mexico City also has its own judiciary, with the Superior Tribunal of Justice as the highest court of the federal entity. The territorial subdivisions of the territory of Mexico City are established by its political constitution. However, the Federal Constitution provides that the political and administrative powers within these territorial units are vested in the mayoralties (alcaldias) which consist of the mayors and a number of up to 15 councilors, to be directly elected by the local population. The federal government retains only those powers with respect to Mexico City which the Federal Constitution expressly confers upon it. The general rule according to which all the powers which are not expressly conferred upon the Federation are reserved for the States thus also applies to Mexico City now (Article 124). The powers retained by the Federation include the power of the Federal Congress to adopt the laws defining the bases for the coordination between the federal government and the government of Mexico City. Mexico City, on the other hand, is under a constitutional duty to ensure at all times the conditions which allow the federal government to properly exercise its constitutional powers (Article 122 B.).

2.  Federal Distribution of Powers

The general provision on the distribution of powers in the Mexican federal system is contained in Article 124. This provision, which is partly inspired by the Tenth Amendment to the US Constitution,27 stipulates that powers which are not expressly granted by the federal Constitution to the federal government are understood to be reserved to the States. While this formula seems to be quite generous to the States at first, the practical effect of this rule is undercut by the wide powers accorded to the Federation in the express provisions of the federal Constitution. The legislative powers of the Federation codified in Article 73 have been continuously extended since 1917; as a matter of fact, with almost 80 amendments up to 2017, Article 73 is the most often amended provision in the entire Constitution. In addition, the Constitution lists a number of activities and acts which are expressly prohibited to the States. These include the entry into alliances with foreign powers, the making of war, the coinage of money, and any activities which may disturb interstate commerce like the levying of taxes and duties on the entry or circulation of foreign or domestic goods in their territory (Articles 117, 118).

The list of federal legislative powers in Article 73 contains matters as diverse as labor relations, commercial matters, electric and nuclear power, oil, mining, anti-trust legislation, financial services, telecommunications, nationality, and immigration, among many others, leaving few, if any, matters of substance to the regulation of the States in the vast areas of economic and social policy. Article 73 section XXX which grants to the Congress of the Union the power to enact all the laws necessary to enforce the powers assigned to the Federation in Article 73 and the other constitutional provisions has thus not had the relevance the Necessary and Proper Clause has had in US constitutional practice, as all the powers which the federal government deemed necessary to pursue its economic and social policies were already included in the original list of express powers or, if they were not, could easily be added to that list by way of constitutional amendment.

Article 124 establishes a rigid distribution of powers between the Federation and the States and Mexico City, as powers which are not expressly granted to the Federation are understood to be reserved to the States. Nevertheless it is generally admitted that even in this rigid system ‘concurrent powers’ of the Federation and the States may exist. However, this concept is understood differently in Mexico from the way it is used in most federal systems. It does not refer to powers the States may exercise as long as the Federation does not decide to use them itself. In the Mexican context the term denotes the possibility of sharing responsibilities between different levels of government in the design and implementation of public policies on the same subject matter, for example on education, health, or environmental protection. However, it is the federal legislature which decides how the competences and responsibilities with regard to the relevant subject matter are distributed between the two—or three, if the municipalities also have specific responsibilities—levels of government.

3.  Fiscal Federalism

With regard to revenues, the Mexican Constitution does not establish a clear delimitation of the respective powers of taxation of the Federation and the federal entities, thus leaving open the possibility that each level of government establishes the taxes that are necessary to fund its expenditure. According to Article 73 VII the Congress of the Union has the power to levy the taxes necessary to fund the federal budget. This has been interpreted by the Supreme Court as meaning that Congress has the power to establish all the taxes which are necessary to finance all the items of the budget.28 As a result, the Federation can tax in respect of all imaginable matters, while the federal entities can tax on those matters which are not expressly allocated to the Federation or specifically prohibited to them. The result has been a system of concurrent powers in the area of taxation which creates the risk of citizens and corporations being taxed on the same matter by both the Federation and the federal entities.

In order to avoid the risk of multiple taxation, a number of National Fiscal Conventions organized by the Federal Ministry in the early decades of the new constitution established a system of fiscal coordination designed to delimit the taxable bases corresponding to each level of government. The basic idea behind the system was that the Federation and the States would enter into agreements by which the States would give up their competence to establish certain taxes in return for receiving a fixed share of the federal tax revenue. The result of this coordination has been the emergence of a highly centralized fiscal system in Mexico in which four fifths of the total national tax revenue is controlled by the federal government. The dominant position of the federal government in the fiscal system is further strengthened by the fact that the federal entities may only use a part of the money they receive from the Federation, the so-called participations, may be spent freely by them. The other part, the so-called appropriations, have to be used to achieve the specific objectives defined for each type of appropriation by (federal) statute.29

4.  Constitutional Status and Powers of the Municipalities

When constitutional changes in the center-periphery relations in favor of greater decentralization have occurred in recent decades, they have often concerned the sub-state level, i.e. the role and the powers of the municipalities, including the Federal District (with regard to the latter see 1. A) above). These reforms whose beginnings can be traced back to the presidency of Miguel de la Madrid (1982–1988) aimed to strengthen the capacities of the municipalities to manage their own affairs and to reduce their traditional dependence on state and federal control and assistance.

Article 115 declares the “free municipality” (municipio libre) to be the basis of the political and administrative organization of the States. The municipalities have legal personality and are governed by directly elected municipal councils. The competences granted by the Federal Constitution to the municipal government shall be exercised in an exclusive manner, and there shall be no intermediate authority between it and the government of the State (Article 115 section I). Article 115 section III establishes a list of public services and functions which fall within the exclusive municipal jurisdiction, including provision of drinking water, sewage, public lighting, collection of waste, public markets, cemeteries, public transportation. The State legislatures must provide the municipalities with the necessary resources for the discharge of their functions, including the levying of real estate taxes on the property within their territory (Article 115 section IV). As the municipal governments often lack administrative capacity, Article 115 III. leaves the door open to the possibility of cooperation agreements, between different municipalities, including municipalities from different States, as well as between municipalities and the respective State, so that the latter my temporarily assume some of the functions and services to be administered by the municipality under Article 115 section III. Due to the often limited capacities of many municipalities, such cooperation agreements between States and municipalities are not uncommon in actual practice.

VI.  The Federal Judiciary and Constitutional Adjudication

1.  Structure of the Federal Judiciary

Historically, the judiciary has been the weakest of the three branches of government of the Mexican Federation. The drafters of the 1917 Constitution had entrusted the judicial power to a Supreme Court conceived as a unified decision-making body (i.e. with division into specialized panels) which was independent from the executive branch. In order to achieve this objective, the power to choose the eleven members of the supreme judicial body was shared between the state legislatures and the federal legislature: each state legislature had the right to nominate one candidate for appointment to the Supreme Court, while the final selection among the proposed candidates was made by the Congress with a two-thirds majority of its total membership. But already in 1928, President Calles undermined the system created by the Constitutional Congress in Queretaro. He dismissed the entire Supreme Court and amended the Constitution to grant the executive substantial control over the judicial branch. The power to nominate the members of the Court was transferred from the state legislatures to the President of the Republic and the right to elect the judges was assigned to the Senate (rather than to the entire Congress). The division of the Court into specialized panels was reintroduced. Six years later, Calles’ successor again dismissed the entire Court, raised the number of judges from eleven to twenty-one and replaced their lifetime tenure with a six-year term. This latter change synchronized the term of the Supreme Court judges with that of the President, giving each new President the opportunity to nominate his own favorites to the bench.

The economic and electoral reforms of the 1980s and early 1990s increased the pressure for a comprehensive reform of the judiciary in order to restore the confidence of the public and of foreign investors in the impartial administration of justice and to combat corruption more effectively. The constitutional reform of December 31, 1994 and subsequent amendments have modified the selection process for ministers of the Supreme Court, their required qualifications, the size of the Court, the tenure of ministers, the jurisdiction and authority of the Supreme Court, and the organization and administration of the federal judiciary.

Under the amended Article 94 of the Constitution, the judicial power of the Federation is vested in the Supreme Court, an Electoral Tribunal, Circuit Collegiate and Circuit Unitary Courts, and District Courts. The Circuit magistrates and the District Court judges are now appointed by the Council of the Federal Judiciary, a body which was created by the 1994 reform in order to ensure the independent administration and oversight of the federal courts system—with the exception of the Supreme Court, which is not subject to its jurisdiction. The Council is an independent organ of the judicial power of the Federation. It is composed of the President of the Supreme Court who also serves as President of the Council, three members from the Circuit Court and District Court magistrates by the Plenary of the Supreme Court with a qualified majority of at least eight votes, two members designated by the Senate and one by the President of the Republic. The main function of the Council is to assist the Supreme Court in the administration of the federal court system. It resolves matters regarding the appointment, assignment and dismissal of magistrates and judges. Its decisions are subject to review by the Supreme Court but this review is limited to the question whether the Council has observed the relevant (procedural) rules of the applicable organic law (Article 100). In addition, the Council of the Federal Judiciary determines the number, the division into circuits, the territorial competence, and the subject matter specialization of the Collegiate and Unitary Circuit Courts and the District Courts (Article 94, paragraph 6).

The Circuit Court and District Court magistrates are still subject to reelection at the end of a six-year trial period; however, the power of re-election has been taken out of the hands of the political branches and assigned to the Council of the Federal Judiciary. If reelected, the federal judges enjoy lifetime tenure, subject only to removal for misconduct (Article 97).

The number of Supreme Court justices was reduced to eleven by the constitutional reform of 1994. The Court may sit either as a full court or in panels (salas). Subsequent reforms have authorized the Supreme Court to remit cases to the Circuit Collegiate Tribunals which function as federal courts of appeal in order to speed up proceedings if they can be decided in accordance with settled precedent or if the referral serves the better administration of justice (i.e. the swift disposal of the case). This allows the Court to alleviate its caseload and to focus on the fundamental issues.

The ministers of the Supreme Court are elected by the Senate with a two-thirds majority on the basis of a short list containing three proposals for each vacancy submitted by the President of the Republic. If the Senate fails to act on the nominations within 30 days of submission, the President is entitled to select one of the nominees on the list to become a minister. If, however, the Senate rejects all the candidates on the list, the President must submit a new short list for the Senate’s consideration. If the Senate rejects the second list as well, the President is free to select one of the nominees on the list. The same applies if the Senate does not take a decision on the appointment within thirty days of submission of the list. These seemingly complicated rules ensure that no prolonged vacancy occurs in the office of a Supreme Court minister. But they do so by handing control over the nomination process to the President of the Republic. If he/she enjoys the support of a two-thirds majority in the Senate, the President will usually have no difficulty in getting his/her nominees appointed. By contrast, if the majority of the Senate is hostile to the President’s proposals, it has only the option to compromise by selecting a nominee further down the presidential list or to risk losing its appointment power altogether.

2.  Constitutional Review Powers of the Supreme Court

The reforms have also extended the powers of the Supreme Court significantly. While the emphasis of its jurisdiction used to be on civil and criminal law controversies arising from the enforcement or application of federal laws, with its constitutional review powers being limited essentially to federal question-type actions, the constitutional amendments have transformed the Mexican Supreme Court into a genuine constitutional jurisdiction. It exercises this jurisdiction under three main headings: constitutional controversies, actions of unconstitutionality and amparo cases.

Under section I of Article 105, the Supreme Court is competent to hear and determine constitutional controversies between the following parties:

  • –  the Federation and a federal entity (i.e. a state or Mexico City);

  • –  the Federation and a municipality;

  • –  the Executive Branch and the Congress of the Union (or either of its Chambers or the Permanent Commission);

  • –  two municipalities from different states; two branches of government of the same federal entity regarding the constitutionality of their acts and general provisions;

  • –  a state and one of its municipalities with respect to their acts or general provisions;

  • –  a federal entity and a municipality of another federal entity or a territorial unit of Mexico City concerning the constitutionality of their acts or general provisions;

  • –  two autonomous constitutional entities, or between one of these and the Executive Power of the Union or the Congress of the Union regarding the constitutionality of their acts or general provisions.

While this head of jurisdiction covers primarily the determination of conflicts on jurisdiction and powers between the various political-administrative entities, the issue of the constitutionality of general provisions issued by the federal entities, the municipalities and the territorial units of Mexico City may also be addressed. However, a decision of the Supreme Court declaring such a provision invalid shall produce legal effects beyond the dispute at hand only if it is approved by a qualified majority of eight out of 11 justices (Article 105 I).

The second head of jurisdiction covers the so-called actions of unconstitutionality which have as their object to raise possible inconsistencies between a norm of a general character and the Constitution. Such actions may be brought within thirty days of publication of the relevant norm by:

  • –  thirty-three percent of the members of the Chamber of Deputies and the Senate against federal laws enacted by the Congress of the Union, in the case of the Senators also against international treaties concluded by Mexico;

  • –  by the Federal Executive, through its Legal Counsel, against general provisions of the Federation or of the federal entities;

  • –  by thirty-three percent of the members of any legislature of a federal entity against the laws adopted by the respective legislature;

  • –  by political parties registered with the National Electoral Institute, through their leadership, against federal and local electoral laws;

  • –  by political parties registered in a federal entity, through their leadership, against electoral laws adopted by the legislature of the federal entity which has granted them registration;

  • –  by the National Human Rights Commission;

  • –  by the agency for the protection of the right of access to public information and protection of personal data established in Article 6 against federal laws, laws of federal entities, as well as international treaties concluded by the Federal Executive and approved by the Senate which violate human rights recognized in the Constitution and in the international treaties to which Mexico is a party;

  • –  by the Attorney General against federal laws and the laws of federal entities on matters of criminal law and criminal procedure.

Individuals, by contrast, are not permitted to bring actions of unconstitutionality. As in the case of constitutional controversies, a decision by the Supreme Court which declares a provision or general norm to be invalid will be generally binding and produce legal effects beyond the case at hand only if it supported by at last 8 of the 11 justices. Even then it does not produce retroactive effects, except in matters of criminal law (Article 105 II, III).

Finally, the Supreme Court may also hear amparo cases. In human rights cases, the Supreme Court will review the decisions of the lower federal courts—District judges and Unitary Circuit Tribunals—when the petition for amparo has challenged general norms for being directly contrary to the Constitution and the problem of unconstitutionality persists. In addition, the Supreme Court may hear, on its own initiative or upon reasoned petition by the competent Collegiate Circuit Tribunal, the Attorney General of the Republic on matters that concern the Public Ministry of the Federation, or the Federal Executive through the Legal Counsel of the Government, appeals in amparo proceedings if their interest and significance so demands (Article 107 VIII). In cases of petition for direct judicial relief (amparo) the appeal to the Supreme Court lies against judgments which decide on the constitutionality of general norms, have the interpretation of a constitutional provision as their principal object, or do not decide on these issues although they had been raised in the proceedings, if they fulfil the criterion of relevance and importance established by the Supreme Court of Justice of the Nation in accordance with the general resolutions of the full court (Article 107 IX).

The decisions of the Supreme Court only bind the parties to the proceedings before it. However, the Supreme Court may declare a statutory or general norm invalid in all three types of proceedings, i.e. constitutional controversies, actions of unconstitutionality, and amparo appeal proceedings. In each of these cases, the decision will only have general effects if it is adopted by eight out of 11 justices. Apart from these cases, the judgements of the Mexican Supreme Court, unlike the decisions of the higher courts in common law jurisdictions, do not constitute binding precedents which have to be followed by the lower courts in similar cases in the future. Mexico has a civil law system which does not acknowledge the doctrine of precedent. For this reason the Constitution in Article 94, paragraph 8 includes a special authorization to the federal legislature to determine the terms under which the jurisprudence of the federal courts regarding the interpretation of the Constitution, federal or state laws or international treaties shall have binding effect. According to the general rules, the jurisprudence of the courts acquires the quality of binding precedent when an identical legal issue is decided in an identical manner on five consecutive occasions.30

Despite these restrictions, the numbers of constitutional controversies and actions of unconstitutionality decided by the Mexican Supreme Court since the reforms of the 1990s have risen significantly. Constitutional controversies have been used successfully by higher government bodies to ensure respect for their constitutional powers by the lower government bodies.31 Due to the emergence of a real political opposition to the executive branch in the Mexican Congress the procedure has also taken on a new significance in the defense of the prerogatives of the federal legislature against encroachment by the Executive.32 Actions of unconstitutionality have also become more frequent, leading in some cases to the nullification of state and even federal laws.33 In addition, the Supreme Court has exercised its amparo jurisdiction to set important precedents concerning the respect for individual rights, e.g. with regard to the circumstances to be taken into account in the fixing of fines and the limits to be observed in the ordering of arrests for contempt of court.34

Annex  Amendments to the Mexican Constitution 1917–2017*

Date of Publication of Reform Decree

Constitutional Provisions affected by reform

July 8, 1921

Article 73, Transitory Article 14

November 24, 1923

Articles 67, 69, 72, 79, 84, 89

January 22, 1927

Articles 82, 83

January 24, 1928

Article 83

August 20, 1928

Articles 73, 74, 76, 79, 89, 94, 96, 97, 98, 99, 100, 111

August 20, 1928

Articles 52, 115

August 20, 1928

Article 73

September 6, 1929

Articles 73, 123

February 7, 1931

Articles 43, 45

December 19, 1931

Articles 43, 45

April 27, 1933

Article 73

April 29, 1933

Articles 51, 55, 56, 58, 59, 73, 79, 83, 84, 85, 115

November 4, 1931

Article 123

January 10, 1934

Article 27

January 18, 1934

Article 42

January 18, 1934

Articles 30, 37, 73, 133

January 18, 1934

Article 73

January 18, 1934

Article 104

March 22, 1934

Article 45

December 13, 1934

Articles 30, 73

December 15, 1934

Articles 73, 94, 95

December 15, 1934

Article 32

January 16, 1935

Articles 43, 45

January 18, 1935

Article 73

July 6, 1937

Article 27

August 12, 1938

Article 49

December 31, 1938

Article 123

September 11, 1940

Articles 97, 102

November 9, 1940

Article 27

December 14, 1940

Article 73

October 24, 1942

Articles 73, 117

November 17, 1942

Article 5

November 18, 1942

Articles 73, 123

December 30, 1942

Article 52

January 8, 1943

Articles 82, 115

February 10, 1944

Articles 32, 73, 76, 89

September 21, 1944

Articles 73, 94, 111

April 21, 1945

Article 27

December 30, 1946

Article 104

December 30, 1946

Article 30

December 30, 1946

Articles 73, 117

February 12, 1947

Article 27

February 12, 1945

Article 115

December 29, 1947

Article 73

December 2, 1948

Article 20

December 2, 1948

Article 27

February 10, 1949

Article 73

February 19, 1951

Articles 73, 94, 97, 98, 107

March 28, 1951

Articles 49, 131

June 11, 1951

Article 52

January 16, 1952

Articles 43, 45

October 17, 1953

Articles 34, 115

January 20, 1960

Articles 27, 42, 48

December 5, 1960

Article 123

December 20, 1960

Article 52

December 29, 1960

Article 27

November 27, 1961

Article 123

November 2, 1962

Article 107

November 21, 1962

Article 123

June 22, 1963

Articles 54, 63

February 23, 1965

Article 18

January 13, 1966

Article 73

October 21, 1966

Articles 89, 117

October 21, 1966

Articles 79, 88, 89, 135

October 25, 1967

Articles 73, 94, 98, 100, 102, 104, 105, 107

December 22, 1969

Article 34

December 26, 1969

Article 30

July 6, 1971

Articles 74, 79

July 6, 1971

Article 73

October 22, 1971

Article 10

February 14, 1972

Articles 52, 54, 55, 58

February 14, 1972

Article 123

November 10, 1972

Article 123

January 31, 1974

Article 93

March 20, 1974

Article 107

October 8, 1974

Articles 27, 43, 45, 52, 55, 73, 74, 76, 79, 82, 89, 104, 107, 111, 123, 131

December 31, 1974

Articles 4, 5, 30, 123

February 6, 1975

Articles 27, 73

February 6, 1975

Article 123

February 17, 1975

Article 107

February 6, 1976

Article 27

February 6, 1976

Articles 27, 73, 115

February 4, 1977

Article 18

December 6, 1977

Articles 6, 41, 51, 52, 53, 54, 55, 60, 61, 65, 70, 73, 74, 76, 93, 97, 115

January 9, 1978

Article 123

December 19, 1978

Article 123

August 6, 1979

Article 107

March 18, 1980

Article 4

June 9, 1980

Article 3

December 29, 1980

Article 78

April 21, 1981

Articles 29, 90, 92

April 21, 1981

Article 117

April 22, 1981

Article 60

November 17, 1982

Articles 28, 73, 123

November 17, 1982

Article 74

December 28, 1982

Articles 22, 73, 74, 76, 89, 94, 97, 108, 109, 110, 111, 112, 113, 114, 127, 134

February 3, 1983

Article 4

February 3, 1983

Article 21

February 3, 1983

Articles 16, 25, 26, 27, 28, 73

February 3, 1983

Article 115

February 7, 1983

Article 4

January 14, 1985

Article 20

February 8, 1985

Article 79

April 7, 1986

Articles 65, 66, 69

Transitory Articles 17, 18 (inserted)

April 7, 1986

Articles 106, 107

December 15, 1986

Articles 52, 53, 54, 56, 60, 77, Transitory Article 18

December 23, 1986

Article 123

March 17, 1987

Articles 17, 46, 115, 116

March 17, 1987

Article 74

August 10, 1987

Articles 73, 94, 97, 101, 104, 107

August 10, 1987

Articles 73, 74, 79, 89, 110, 111, 127

August 10, 1987

Article 78

Transitory Article 19 (inserted)

August 10, 1987

Articles 27, 73

May 11, 1988

Article 89

April 6, 1990

Articles 5, 35, 36, 41, 54, 60, 73

Transitory Articles 17, 18 and 19 (abolished)

June 27, 1990

Articles 28, 123

January 6, 1992

Article 27

January 28, 1992

Articles 3, 5, 24, 27, 130

Transitory Article 17 (inserted)

January 28, 1992

Article 4

January 28, 1992

Article 102

March 5, 1993

Articles 3, 31

August 20, 1993

Article 82

August 20, 1993

Articles 28, 73, 123

September 3, 1993

Articles 65, 66

September 3, 1993

Articles 41, 54, 56, 60, 63, 74, 100

September 3, 1993

Articles 16, 19, 20, 107, 119

October 25, 1993

Articles 31, 44, 73, 74, 76, 79, 89, 104, 105, 107, 119, 122

April 19, 1994

Article 41

July 1, 1994

Article 82

December 31, 1994

Articles 21, 55, 73, 76, 79, 89, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 108, 110, 111, 116, 122, 123

March 2, 1995

Article 28

March 3, 1996

Article 16

July 3, 1996

Articles 20, 21, 22, 73

August 22, 1996

Articles 35, 36, 41, 54, 56, 60, 73, 74, 94, 98, 99, 101, 105, 108, 110, 111, 116, 122

March 20, 1997

Articles 30, 32, 37

March 8, 1999

Articles 16, 19, 22, 123

June 11, 1999

Articles 94, 97, 100, 107

June 29, 1999

Articles 4, 25

June 28, 1999

Article 73

June 28, 1999

Article 73

July 29, 1999

Article 58

July 30, 1999

Articles 73, 74, 78, 79

September 13, 1999

Article 102

December 23, 1999

Article 115

April 7, 2000

Article 4

September 21, 2000

Article 20

September 21, 2000

Article 73

August 14, 2001

Articles 1, 2, 4, 18, 115

June 14, 2002

Article 113

November 12, 2002

Article 31

September 29, 1993

Article 73

October 29, 2003

Articles 63, 77

April 5, 2004

Articles 73, 89

July 30, 2004

Article 74

August 2, 2004

Article 65

September 27, 2004

Article 73

June 20, 2005

Article 21

November 28, 2005

Article 73

December 8, 2005

Articles 46, 73, 76, 105

December 9, 2005

Articles 14, 22

December 12, 2005

Article 18

April 7, 2006

Articles 26, 73

September 14, 2006

Article 105

December 4, 2006

Article 73

December 4, 2006

Article 4

February 12, 2007

Articles 76, 89

June 19, 2007

Article 82

June 19, 2007

Article 55

July 20, 2007

Article 73

July 20, 2007

Article 6

August 2, 2007

Articles 29, 73, 90, 92, 93, 95, 110, 111

August 15, 2007

Article 73

September 27, 2007

Article 99

November 13, 2007

Articles 6, 41, 85, 99, 108, 166, 122, 134

May 7, 2008

Articles 73, 74, 79, 116, 122, 134

June 18, 2008

Articles 16, 17, 18, 9, 20, 21, 22, 73, 115, 123

August 15, 2008

Articles 69, 93

August 29, 2008

Article 88

September 26, 2008

Article 116

April 30, 2009

Article 73

April 30, 2009

Article 73

May 4, 2009

Article 73

June 1, 2009

Article 16

August 24, 2009

Articles 75, 115, 116, 122, 123, 127

April 27, 2010

Article 122

July 29, 2010

Article 17

April 13, 2011

Article 43

June 6, 2011

Articles 93, 103, 104, 107

June 10, 2011

Articles 1, 3, 11, 15, 18, 29, 33, 89, 97, 102, 105

July 14, 2011

Articles 19, 20, 73

August 17, 2011

Articles 71, 72, 78

October 12, 2011

Articles 4, 73

October 3, 2011

Articles 4, 27

February 8, 2012

Article 4

February 9, 2012

Articles 3, 31

June 25, 2012

Article 73

August 9, 2012

Articles 35, 36, 71, 73, 74, 76, 78, 83, 84, 85, 87, 89, 116, 122

October 15, 2012

Articles 46, 76, 105

November 30, 2012

Article 40

February 26, 2013

Articles 3, 73

June 5, 2013

Articles 25, 26

June 11, 2013

Articles 6, 7, 27, 28, 73, 78, 94, 105

July 19, 2013

Article 24

September 30, 2013

Article 37

October 8, 2013

Article 73

December 20, 2013

Articles 25, 27, 28

December 27, 2013

Article 73

December 27, 2013

Articles 116, 122

February 7, 2014

Articles 6, 73, 76, 89, 105, 108, 110, 111, 116, 122

February 10, 2014

Articles 26, 28, 29, 35, 41, 54, 55, 59, 65, 69, 73, 74, 76, 78, 82, 83, 84, 89, 90, 93, 95, 99, 102, 105, 107, 110, 111, 115, 116, 119, 122

June 17, 2014

Article 4

June 17, 2014

Article 108

June 17, 2014

Article 123

July 7, 2014

Article 41

May 22, 2015

Article 2

May 26, 2015

Articles 25, 73, 79, 108, 116, 117

May 27, 2015

Articles 22, 28, 41, 73, 74, 76, 79, 104, 108, 109, 113, 114, 116, 122

July 2, 2015

Article 73

July 10, 2015

Article 73

January 27, 2016

Articles 26, 41, 123

January 29, 2016

Articles 2, 3, 5, 6, 17, 18, 21, 26, 27, 28, 31, 36, 40, 41, 43, 44, 53, 56, 62, 71, 73, 76, 79, 82, 89, 95, 101, 102, 103, 104, 105, 106, 107, 108, 110, 111, 115, 117, 119, 120, 121, 122, 123, 124, 125, 127, 130, 131, 133, 134, 135

July 25, 2016

Article 73

August 15, 2016

Article 11

February 5, 2017

Articles 25, 73

February 24, 2017

Articles 107, 123

* The decree of July 22, 2004 which reformed Article 2 of the Transitory Provisions of the constitutional amendment of March 20, 1997, but not the constitutional text itself, has been omitted from the list.

Footnotes:

Charles C. Cumberland, Mexican Revolution—The Constitutionalist Years, University of Texas Press 1972, 332.

Cumberland, Mexican Revolution (note 1), 350.

Cumberland (note 1), 347.

Cumberland, Mexican Revolution (note 1), p. 354.

The precise number of the amendments which have been adopted since 1917, starting with the reform of August 7, 1921, and up to February 24, 2017 is 231, see http://www.diputados.gob.mx/LeyesBiblio/ref/cpeum_crono.htm.

On the Convention see S. J. Anaya, Indigenous Peoples in International Law (2nd edition 2004), p. 58. Mexico has been one of presently only 19 states which have ratified the Convention (it was the second to do so after Norway in 1990).

In an important ruling of June 20, 2007 on the constitutionality of the Federal Broadcasting Law, the Mexican Supreme Court used this provision in order to invalidate several provisions of the Law for their failure to encourage and facilitate the development of broadcast operations in indigenous communities.

José Maria Serna de la Garza, The Constitution of Mexico, Hart Publishing 2013, 44/45. In March 2004, Jorge Castañeda Gutman had filed an application to register as an independent candidate for the Mexican presidential elections in 2006. After his application had been turned down by the Federal Electoral Institute (as it then was) on the ground that only national political parties have the right to apply for registration of candidates for popularly elected office, he challenged the decision before the Mexican courts, only to be told that the amparo relief sought by him to protect his electoral rights was inadmissible against decisions of electoral bodies. Eventually, the Inter-American Commission of Human Rights filed a complaint before the Inter-American Court of Human Rights for violation of the applicant’s rights under the American Convention on Human Rights, particularly his right to judicial protection under Article 25. In its decision Castañeda Gutman v. Mexico of August 6, 2008 the Court held that Mexican law did not provide for an effective remedy that allowed individuals to challenge the kind of acts of public authority involved in the Castaneda case, and ordered Mexico to adapt its law to the Convention. This the Mexican Congress had already started to do by adopting the constitutional reform of November 13, 2007, which restored to the Federal Electoral Tribunal the power to review the constitutionality of electoral laws in disputes concerning acts and decisions taken by electoral authorities in the application of those laws, thus allowing citizens to effectively challenge statutes that might violate their right to stand in elections, see Serna de la Garza, p. 41.

Serna de la Garza, Constitution of Mexico (note 8), p. 25–26.

10  Article IV section 4 of the US Constitution provides that the United States shall guarantee to every State in the Union a Republican Form of Government; Article 28 of the German Basic Law obliges the German Länder to respect the principles of a republican, democratic and social state governed by the rule of law and to grant the right of self-government to their municipalities.

11  See R. Grote, Constitutions of the Countries of the World, India, Commentary II. 4.

12  Jorge A. Schiavon, The central-local division of power in the Americas and renewed Mexican federalism—old institutions, new political realities, International Journal of Constitutional Law 4 (2006), 403.

13  Named after the Argentine lawyer and diplomat Carlos Calvo (1824–1906). The Calvo clause was designed to protect the jurisdiction of weaker nations against the overwhelming economic and military power of European states and the US by providing that in cases of disputes arising out of concession contracts with foreign nationals the foreigners relinquished the right to request the diplomatic and judicial protection of their national state and agreed to have the dispute settled by local tribunals. On the clause see D. Shea, The Calvo Clause—A Problem of Inter-American and International Law and Diplomacy (1955).

14  G. Marrero/D. Rennert, Southwestern Journal of Law & Trade in the Americas 1 (1994), 92. Foreign investment in agriculture remains limited, however, since statutory legislation limits the share of the equity capital of Mexican agricultural corporations which may be held by foreigners to 49 percent.

15  The Vienna Declaration declares in consideration 5: “All human rights are universal, indivisible and interdependent and interrelated.”

16  IACtHR, Radilla Pacheco v United Mexican States, Judgment of November 23, 2009.

17  Serna de la Garza, Constitution of Mexico (note 8), 182.

18  M. A. Güitron, Anuario de derecho constitucional latinoamericano 2002, 50. At the same time, the Court has affirmed that the right to life is not explicitly protected in the Constitution in its decision concerning the depenalization of abortion by the legislature of the Federal District (Mexico City), see Serna de la Garza, Constitution of Mexico (note 8), 188/89.

19  Serna de la Garza, Constitution of Mexico (note 8), 114.

20  Serna de la Garza, Constitution of Mexico (note 8), 115.

21  Michael C. Taylor, Why no Rule of Law in Mexico? Explaining the Weakness of Mexico’s Judicial Branch, New Mexico Law Review 27 (1997), 152.

22  According to the general rules, court decisions constitute binding precedent (only) if and when an identical legal issue has been decided in an identical manner on five consecutive occasions, see VI. 2. below.

23  See J.L. Soberanes Fernández, Ley de la Comisión Nacional de los Derechos Humanos: comentada y concordada (2005).

24  The President traditionally assumes office on December 1 of the year following his/her election. As federal elections take place on the first Sunday of July, this has meant a transition period of almost 5 months in the past. Therefore the constitutional reform of February 10, 2014 has shifted the inauguration date to October 1. However, this change will become only effective for the term of the actual President’s successor who will be elected in 2018 and whose term will thus end on September 30, 2024. By contrast, Peña Nieto will still serve until November 30, 2018.

25  Schiavon, Renewed Mexican federalism (note 12), 404.

26  An important example was the privatization of the electricity sector which President Fox tried to implement by way of executive decree, only to find the measure invalidated by the Supreme Court for exceeding his constitutional powers in the execution of federal laws, see Güitron (note 14), 51-56. Privatization of the electricity sector only became possible with the adoption of a constitutional reform to this effect in 2013, long after Fox had left office (see I. 4. above).

27  Serna de la Garza, Constitution of Mexico (n. 8), 138.

28  Serna de la Garza, Constitution of Mexico (note 8), 146.

29  Serna de la Garza, Constitution of Mexico (note 8), 148.

30  Alexis J. Gilmann, Making Amends with the Mexican Constitution: Reassessing the 1995 Judicial Reforms and Considering Prospects for Further Reform, George Washington International Law Review 35, 951 (2003).

31  Gilmann, Judicial Reforms (note 30), 969.

32  Above note 26.

33  In an important decision of June 20, 2007, the Supreme Court struck down several provisions in the federal broadcasting law which would have made the renewal of licenses for current concession holders automatic and would have given them almost exclusive access to digital broadcasting on the basis of current licenses.

34  Gilmann (note 21), 969.