Editor’s Note: Today we publish the 2016 Report on Mexican constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—José Ramón Cossío Díaz, Mexican Supreme Court Justice; Constitutional Law Professor at Instituto Tecnológico Autónomo de México (ITAM); member of El Colegio Nacional; Carlos Herrera Martin, Teaching Fellow at University College London; Raúl M. Mejía Garza, Secretary of the office of Justice José Ramón Cossío, Supreme Court of Justice; Constitutional Law Professor at Centro de Investigación y Docencia Económicas (CIDE); Camilo Saavedra Herrera, Research Fellow at the Center for Constitutional Studies of the Supreme Court; Mariana Velasco Rivera, J.S.D. candidate at Yale Law School; Visiting Researcher at the Center for Global Constitutionalism – WZB, Berlin; Yale Fox International Fellow at Freie Universität, Berlin
Taking a look at the developments in Mexican Constitutional Law in 2016 illustrates well the transformation the justice system has gone through in the last decade, both procedurally and substantively; and, the complex social reality of the country. In only a decade, the criminal justice system was transformed of an inquisitorial to an accusatory model in 2008; long-standing procedural rules of the individual constitutional complaint mechanism, the Juicio de Amparo (amparo suit), were modified in 2011; and, shortly after, human rights established in international treaties from which Mexico is part were incorporated as part of the constitution. All of these changes place a bigger burden on the judiciary and particularly on the Mexican Supreme Court (hereinafter the Supreme Court or Court). As we will see in the following sections, one way or another these transformations are manifesting. The new criminal justice principles are colliding with government interests to tackle serious drug-related violence (Section III); the Supreme Court is extensively taking into account international human rights instruments to adjudicate the increasing number of amparo suits in its docket (Sections II and IV); and the Court is often having to solve cases closely related to state surveillance and national security.
II. The Constitution and the Court
The design of the Mexican constitutional justice system has become increasingly robust throughout constitutional history. The constitution of 1917 was born with a substantive charter of rights that included the social justice demands of the revolution and inherited the worldwide known individual constitutional complaints mechanism created in the 9th century with American and European influences: the amparo suit. For almost 80 years, the amparo suit was virtually the only mechanism to bring constitutional questions to the Supreme Court until 1994 when, in the midst of the fall of the single-party hegemonic regime, the dormant controversias constitucionales (competence allocation mechanism) were modernized and the acciones de inconstitucionalidad (abstract judicial review) were adopted. Both the competence allocation mechanism and abstract review are concentrated forms of review granting standing to a limited number of actors (i.e. the executive and legislative powers, the attorney general, legislative minorities, political parties, etc.), whereas the amparo suit is a semi-concentrated and concrete form of review granting standing to anyone who considers that their constitutionally protected rights have been violated. Although the modernization and adoption of concentrated forms of judicial review have put the Court in a more prominent position as an arbiter of political disputes, the amparo suit remains the only mechanism available for individuals to bring cases before the Supreme Court.
Within this system of constitutional justice, the Supreme Court is the highest authority for constitutional interpretation. Its membership comprises 11 Justices appointed by the President (in charge of nominating) and the Senate (in charge of confirmation by a qualified majority) to serve for 15-year terms. The Supreme Court convenes in en banc sessions (Pleno) three times a week and in two five-judge panel sessions (First Chamber and Second Chamber) once a week. Yet, the two panels adjudicate the vast majority of cases—which in addition happen to be amparo suits.
Through the amparo suit, individuals are able to challenge the constitutionality of statutes, legality of authority acts (amparo indirecto) and judicial decisions (amparo directo) in federal courts. Roughly speaking, amparo suits only reach the Court in the form of appeal when a constitutional question in the ‘strict sense’ remains unanswered or if the Court deems a case important and transcendent. Importantly, it has to be noted that assessing the impact of Supreme Court rulings in amparo is a difficult task for two reasons: the effects of rulings and precedential rules. On the one hand, the effects of rulings are inter partes as opposed to erga omnes—meaning that despite the declaration of unconstitutionality of a norm in a given case, it remains valid for the rest of the population. On the other hand, the amparo’s precedential system requires five rulings, all with the same outcome, to become binding on lower courts—which for practical matters means that constitutional questions are not necessarily settled when the Supreme Court issues a decision. In this sense, the reader must bear in mind that, in our opinion, the selection of cases in section IV below illustrates well recent developments in constitutional law but does not imply an assessment on their impact on constitutional rights doctrine.
In 2011 an amendment to article 1 of the constitution introduced major changes for constitutional interpretation on human rights matters. The amendment incorporated human rights treaties ratified by the Mexican State as part of the constitution, prohibiting any restriction or suspension of rights except on the cases and under the conditions provided by the constitution. Moreover, it established the pro personae interpretative principle and the obligation of all state authorities, within the scope of their jurisdiction, to promote, respect, protect and guarantee human rights according to the principles of universality, interdependence, indivisibility and progressiveness. Normatively speaking, this amendment incorporated human rights established in treaties as part of the constitution, except in a state of emergency (article 29 of the constitution). Unfortunately, in a major setback of the amendment in 2014, in a 10 to 1 decision solving a circuit split (contradicción de tesis), the Supreme Court decided that any restriction established in a constitutional provision should prevail over human rights. In spite of this hindrance, in our opinion, the amendment has already had a noticeable impact on the resources Justices use to solve rights related cases. Today it is already a settled practice to establish the interpretative framework to include international human rights law, a practice that 15 years ago was virtually non-existent.
III. Constitutional Controversies
The surge of violence related to drug trafficking and organized crime has been the main public issue Mexico has faced in the last decade. The federal government has increasingly relied on the armed forces to act as the institutions in charge of most public security functions, which according to articles 21 and 29 of the constitution should be in charge of civil authorities and only under a state of emergency could the military take control. Without a formal declaration of a state of emergency, what constitutionally is supposed to be the exception has become the rule. Remarkably, in this period the Mexican state has also shown efforts aimed at signaling its commitment to rights protection, namely through the adoption of constitutional reforms aimed at making the criminal justice system transparent and rights protective; and better comply with international human rights standards.
The normalization of the use of the military for public security functions and the constitutional reforms that have been adopted aimed at, arguably, transforming the justice system into one that fits into a true liberal democracy seem to be colliding. On the one hand, the government wants to provide the military with more power and discretion in order to efficiently tackle the problem of organized crime; but on the other hand, doing that would mean putting into question the realization of true liberal democracy.
The 2008 constitutional reform is a good example to illustrate the collision of government interests. Promoted as a measure to finally have a fair criminal justice system on the one hand, the reform substituted a closed, inquisitorial, mostly written model with an open, adversarial and oral model in order to foster transparency and efficiency; however, on the other hand, it created a regime of exception for the investigation and prosecution of organized crime (the type of crimes under which drug-related matters are prosecuted) where minimum standards of due process in the phase of investigation do not apply.
In the 10 years since the war on drugs was launched by the Federal Government in 2006, neither having the military on the streets nor the institutional mechanisms to make criminal investigation more efficient have delivered the expected results. As both academia and mass media have documented, the war on drugs has led to a substantial increase in violence levels and human rights violations. The rise in homicide rates is, arguably, the most dramatic proof of this change. These rates increased from 8.1 homicides per 100,000 inhabitants in 2008 to 23.5 in 2011. As this shift has been even more noticeable in the states where the military has conducted public security tasks, the debate within and outside legislative arenas has been particularly focused on the role said institution should play in public security matters. This became a pressing issue particularly because in 2016 the Secretary of Defense, Gral. Salvador Cienfuegos, publicly declared a number of times that the military no longer wants to perform police functions, and explicitly asked for the Congress to issue a legal framework to regulate their activities.
Unsurprisingly, toward the end of 2016 and the beginning of 2017, three legislative bills were presented to propose the creation of a brand new piece of legislation on internal security aimed at regulating the participation of the military in public security functions. In particular, two out of the three bills—one presented in the Chamber of Deputies by the ruling Institutional Revolutionary Party (PRI, its acronym in Spanish), and the other by the National Action Party (PAN, its acronym in Spanish), the party in power when the war on drugs was launched—seek to institutionalize the role and broaden the power of the military in law enforcement. Roughly speaking, the bills provide a possibility to formally declare the existence of threats to the interior security, under which the military is empowered to take over police and investigation functions—namely, detaining individuals, conducting searches, conducting interrogations, intervene communications, etc.
Those that defend the reform argue that it is just providing a legal framework to what has been happening on the ground for such a long time and establishing clear limits to the military. However, the reform has been widely criticized by the civil society and NGOs who argue that it is militarizing law enforcement in Mexico and following a strategy that has increased human rights violations and has not been an effective way of combating organized crime. The government is under pressure from two fronts: the conditional support of the military by the issuing of a statute providing a legal framework for their activities; and the realization of the formal constitutional commitments it has acquired aimed at building a state where human rights are protected.
Should any of the bills or a mild version of them pass, it is feasible to think that sooner or later the Supreme Court would have to decide on the constitutionality of the new piece of legislation. It remains to be seen whether the Supreme Court would decide to give preference to the government interest for wider discretion and powers to investigate and to prosecute organized crime or to the protection of human rights.
IV. Major Cases
In the cases decided by the Supreme Court, two relevant trends are clearly identifiable. On the one hand, the extensive use of international human rights instruments to set the interpretative framework to decide cases; and on the other hand, an increasing number of rulings discussing the limits to surveillance powers.
A. Use of International Instruments
Principle of Legality in Criminal Law – Amparo Directo en Revisión 2255/2015
An individual challenged the ruling sentencing him to spend 10 months and 15 days in prison for committing the crime of insulting an authority provided in Article 287 of the Criminal Code of Mexico City. The Supreme Court sitting en banc struck down the provision on the basis that it went against the principle of legal certainty as defined in Article 14 of the Mexican Constitution and Article 9 of the Inter-American Convention on Human Rights (ACHR). According to the analysis of the Court, the crime of insulting an authority left unclear what conduct would result in criminal prosecution. The most prominent aspect of this ruling is the strong emphasis placed on the interpretation of the principle of legality developed by the Inter-American Court of Human Rights (ICoHR) in the cases of Fermin Ramirez v. Guatemala and Castillo Petruzzi et al v. Peru. In Castillo Petruzzi et al v. Peru, the ICoHR interpreted Article 9 saying:
121.The Court considers that crimes must be classified and described in precise and unambiguous language that narrowly defines the punishable offense, thus giving full meaning to the principle of nullum crimen nulla poena sine lege praevia in criminal law. This means a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from behaviors that are either not punishable offences or are punishable but not with imprisonment. Ambiguity in describing crimes creates doubts and the opportunity for abuse of power, particularly when it comes to ascertaining the criminal responsibility of individuals and punishing their criminal behavior with penalties that exact their toll on the things that are most precious, such as life and liberty.
This Supreme Court could have used existing interpretations of the principle of legality as developed by the Mexican Supreme Court but instead it opted for an interpretation developed by the ICoHR.
Right to Private Life and Reparations – Amparo Directo en Revisión 3236/86
An individual challenged a ruling by a Mexico City Court of Appeals which found that an individual was guilty of defamation but failed to condemn him to provide monetary compensation. In this case, the First Chamber ruled that Articles 39, 40 and 41 of the Mexico City Law of Civil Responsibility to Protect the Rights to a Private Life, Honor and Self-Image were unconstitutional. This legal instrument provided a civil remedy for those individuals subject to defamatory statements. The Court ruled said provisions were unconstitutional for two reasons. First because they did not require monetary compensation on all cases and second because they impose a limitation to the amount that could be paid. The Court ruled that these provisions were contrary to the compensation regime found in Article 63.1 of the ACHR, which provides that
If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.
The Supreme Court interpreted Article 63.1 directly and ruled that providing an effective remedy to a violation of convention rights required monetary compensation not subject to limitations.
Rights of Persons with Disabilities – Acción de Inconstitucionalidad 33/2015
In abstract review, the National Human Rights Commission challenged the constitutionality of several articles in the Law for the Attention and Protection of Persons With the Condition and Within the Spectrum of Autism. The Supreme Court upheld most of the articles, but the most interesting feature of this case is the substantive interpretation given to the International Convention on the Rights of Persons with Disabilities. The Supreme Court by a majority of 10 to 1 ruled that Article 4.3 of said Convention imposed a substantive requirement to give meaningful participation to persons with disabilities before deciding on governmental policy or legislation that affects them directly. A majority of 7 Justices found that in this case the requirement had been complied with, but they pointed out that it would be better if this obligation was regulated so authorities are aware of the requirements they need to comply with before passing legislation or implementing policies that affect persons with disabilities. There were 3 minority votes that considered that the legislation did not comply with the consultation requirement of Article 4.3 of the Convention and therefore the law should be struck down. This is another example of the Supreme Court making substantive interpretations of international instruments that have an effect on the understanding of the requirements of the legislative process.
Gender Equality – Amparo en Revisión 59/2016
In this case a married man who was denied day care service for his child challenged the constitutionality of Articles 201 and 205 of the Social Insurance Law for discrimination based on gender. The Second Chamber of the Supreme Court ruled that said provisions in fact were discriminatory and therefore unconstitutional because they only gave the right to childcare to women workers. According to the Court, the Convention on the Elimination of all Forms of Discrimination Against Women imposed an obligation to judge with a gendered perspective. Therefore, adopting a gendered perspective, the Court found that this distinction was unjustified particularly because it assigned roles based on gender stereotypes, resulting not only in the discrimination of men to access childcare service but also in an unduly affection to the child. This is another example of the Court adopting a substantive obligation from an international instrument.
Right to Education – Amparo en Revisión 750/2015
In this case, the First Chamber of the Supreme Court ruled that a Public University from the State of Michoacan could not charge registration fees because this would be a violation of the right to education of the plaintiffs. The Constitution of the State of Michoacán in its Article 138 had recently established the right to free higher education and an agreement was signed between the state government and the university which allowed this measure to be implemented for two years. However, the state government did not renew its funding commitment to the university, thus the latter started charging registration fees once again. The Court ruled that even though the right to access education was not absolute, it was subject to the principle of progressiveness and could not be rolled back arbitrarily. Based on said principle, once a socioeconomic right is established or recognized, any rollback should be subject to strict scrutiny—meaning the authority should prove both the lack of funds and efforts for the realization of the right at hand. To justify its interpretation, the Court made extensive references to international human rights instruments that define the right to education such as Article 13 of the International Covenant on Economic, Social and Cultural Rights and the interpretation of the progressiveness principle in relation to education developed in General Comments no. 11 and 13 developed by the Committee on Economic, Social and Cultural Rights.
Right to Equality (LGBTI Rights) – Amparo en Revisión 710/2016
In this case a woman working for the state was denied the right to register her wife for social security benefits. Accordingly, the plaintiff challenged several provisions of the Social Services and Security for Government Employees Law based on which the registration denial was motivated on for discrimination based on sexual preference. The Second Chamber of the Supreme Court found that the use of heteronormative language to define the beneficiaries from social security resulted in an unconstitutional suspect classification against same-sex couples. This ruling was uncontroversial and consistent with previous rulings made by the Supreme Court on the rights of same-sex couples. Just as in the set of cases included in this section, the Court once again relied extensively on rulings from the ICoHR and on its interpretation of the ACHR, Article 24 and Article 1, in cases such as Espinoza Gonzáles v. Perú and Duque v. Colombia.
B. National Security
The Court was faced with national security issues mainly in relation to the power of law enforcement agencies to wiretap private communications and the right to privacy.
Geolocation without judicial warrant – Amparo Directo en Revisión 3886/2013
In this criminal case, the First Chamber decided on the limits of the right to privacy and private communications. The defendant argued that the use of geolocation of the phone of the victim should be dismissed as evidence in the trial in which he stood accused for kidnapping because, on the one hand, the victim had not authorized to reveal private communications and, on the other hand, this had been done without judicial warrant. In a 3 to 2 decision, the Court found that when there is a criminal investigation in which there is reasonable suspicion of a real and imminent danger for the victim, the right to protect private communications is inapplicable. Accordingly, in cases in which the authority has reason to believe there is a real and imminent danger, then it can require, without judicial warrant, telecommunication companies for private communications in which the victim had intervened. In all other cases, the Court considered, a judicial authorization is required to allow the police to access private communications for criminal investigations.
Geolocation and Call Registry – Amparo en Revisión 964/2015 and 937/2015
In the other relevant case on the extent of powers to intervene private communications in the context of criminal investigations, the Second Chamber ruled on whether Articles 189 and 190 of the Federal Radio and Telecommunications Law violated their right to privacy as protected by Article 11 of ACHR. These articles imposed two requirements on telecommunication companies: to keep a registry with information on the communications of its users and to provide geolocation information when required to do so by law enforcement authorities. The Court ruled that the registry in itself was not unconstitutional but that in order to get access to the information contained in it, the legislation had to be read as requiring judicial authorization before any information was given. The other aspect of the law that was being challenged, which was the power of law enforcement agencies to get geolocation information without judicial authorization, which was in line with existing precedent of the Court, was considered constitutional.
Recurso de Revisión en Materia de Seguridad Nacional 1/2016
This case was filed directly in the Supreme Court under a new judicial review instrument tailored for the legal advisor of the President to challenge resolutions of the INAI (an autonomous agency, whose decisions as a general rule are non-appealable for government officials) ordering the disclosure of information when the President deems it affects national security. The individual had asked for information on the use of powers to wiretap private communications. The petitioners asked from the Centre of Research and National Security the number of times it had asked for authorization from the federal judiciary to wiretap private communications, the number of times their petitions had been granted, how many had been denied and the number of persons or electronic devices which had been wiretapped in 2014. Eventually the decision reached the Transparency Institute, which ordered the disclosure of information, which in turn was challenged by the legal advisor of the President. The Court ruled 10 to 1 against the government and considered that disclosing the information required by the National Transparency Institute would not affect national security. The Court concluded that it is not possible to establish a general rule to determine what kind of information could be disclosed without endangering national security, leaving the issue to be decided on a case-by-case basis. Which, for instance, means that to the extent that citizens file information disclosure petitions on any issue the President considers to be related to national security, the disclosure of information would require a two-tiered process, one at the Transparency Institute and one at the Supreme Court.
The selection of cases decided by the Supreme Court for this report show interesting aspects of constitutional adjudication in Mexico. While it is clear that the Court is now consistently using international human rights instruments in delimiting interpretative frameworks to adjudicate rights-related cases, this does not necessarily mean one could argue the Court is becoming a more progressive constitutional tribunal. Without a doubt, having Justices open to consider international law for their decision-making is not a minor feature for the development of constitutional law. However, we consider it is very important not to forget that, given the procedural complexities of the constitutional justice system, in assessing the impact and consequences of a given case (especially in amparo) it is necessary to make more detailed analyses that are beyond the scope of this report. As seen in the cases in Section IV above, one can see positive outcomes in terms of the right to equality (AR 710/2016 and AR 59/2016) and to education (AR 750/2015) but at the same time in the most basic (and pressing) issues as due process for the intervention of private communications, the Court has upheld the constitutionality of such interventions without a judicial warrant (AR 964/2015 and 937/2015). Put in a broader perspective, the latter is particularly relevant to be aware of since it might be signalling the Court’s deference to rights-restrictive government policies when it comes to criminal law enforcement, an issue of particular importance given the pressing human rights crisis Mexico is in and the fact that as outlined in Section III will most likely keep returning to the Supreme Court’s docket.
 Since 2010, this review mechanism provides the possibility for the Supreme Court to declare legal norms void with general effects. After five consecutive rulings declaring the same norm unconstitutional and previous warnings to Congress, the Supreme Court has the power to declare the unconstitutionality of the norm at hand. To this date, the Supreme Court has not exercised this power.
 SCJN, CT 293/2011. For a thorough analysis of the decision-making of this case and others see: José Ramón Cossío, Raúl Mejía and Laura Rojas, La Construcción De Las Restricciones Constitucionales A Los Derechos Humanos (Porrúa 2015).
 In fact, this was incorporated by the Supreme Court as the rule in a declarative opinion (Expediente Varios 912/2010) issued in July 2011 shortly after the amendment to article 1. SCJN, Expediente Varios 912/2010, 14 July 2011, available at < http://fueromilitar.scjn.gob.mx/Resoluciones/Varios_912_2010.pdf>, accessed 10 April 2017. For a detailed analysis of the decision-making process of this opinion see: Ramón Cossío, Raúl Mejía and Laura Rojas, El Caso Radilla, Estudio y Documentos (Porrúa 2013).
 See Miguel Ángel Berber Cruz, “Trayectorias de violencia. Homicidios 2008-2014”, Nexos, july 2016 (available at: http://www.nexos.com.mx/?p=28803).
 See ‘Que Las Tropas Regresen a Los Cuarteles, Dice Cienfuegos’ (El Universal) http://www.eluniversal.com.mx/articulo/nacion/seguridad/2016/12/8/que-las-tropas-regresen-los-cuarteles-dice-cienfuegos accessed 15 April 2017; Cienfuegos: “El Ejército debe salir de las calles; fue un error entrar en esa guerra” (Sin Embargo) http://www.sinembargo.mx/16-03-2016/1636596 accessed 15 April 2017.
 See Acción de Inconstitucionalidad SCJN 32/2012.