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JURIST's Mexico Correspondents are Carlos A. Gabuardi, J. Salazar y Cia., Monterrey, adjunct in the Department of Law, Monterrey Institute of Technology and Advanced Studies, and formerly Head of the Law Department and Professor of Law, Universidad de Monterrey; and Ignacio Vera, Melgar y Ortiz, Mexico City.
[Monterrey; Special to JURIST] In the historic presidential election held on July 2, 2000, an alliance of two parties led by candidate Vicente Fox defeated the presiding Institutional Revolutionary Party (PRI) candidate Francisco Labastida. Incumbent President Ernesto Zedillo stunned everyone by announcing Mr. Fox痴 victory, based solely on polls -- official and non-official -- indicating that voting trends favored Mr. Fox. President Zedillo痴 revelation preceded the Federal Electoral Commission痴 formal announcement. His reasons for doing all this will probably remain unknown, leaving many to speculate.

Zedillo痴 announcement marked the end of more than 70 years of hegemony of a single political party along with the end of extreme power concentrated in the President himself. Fox will be the first Mexican President since the revolution of 1910 whose Party will not hold the majority in either of the two houses of Congress. For the first time ever, Mexican State Governors may not necessarily be as favorable to the will of the Mexican President.

Two important questions arise in this scenario:

  1. what will be the implications of the new political reality for the Mexican legal system?; and
  2. what will be the role of the Mexican judiciary in the new political environment?

Under the Mexican Constitution, Mexico - officially the United Mexican States - is a Federal Republic. The federal government is organized into three branches - the Executive, the Legislative and the Judiciary - patterned on the US system of checks and balances. However, the underlying reality has been that the Federal Executive in Mexico City has acted as a very strong centripetal axis, leaving a very small sphere of autonomy for the other two branches of the federal government and for the States of the union. At the same time, the President accumulated an extreme - almost unthinkable - amount of political power and de facto has been the supreme political leader of the country, both formally and informally.

With the arrival of the fresh air of democracy the setting that contributed to the extreme concentration of power in the Mexican President has substantially changed. Vicente Fox will be a President with far less political power than any of his predecessors. He will not have the unconditional support of Congress or the unconditional support of State governors. Furthermore, he will be the center of attacks not only from the formal political opposition, the PRI and the Party of the Democratic Revolution (PRD), but he will also have to deal with internal opposition from his own National Action Party (PAN) members. Mr. Fox should also expect opposition from those whose interests has been negatively affected by the rise of democracy.

The Mexican President is elected to a six-year term. During President Fox痴 term it can reasonably be expected that the Federal Executive (including the President, his cabinet and the bureaucratic apparatus under them) will constantly be forced to act as political negotiators in their relations with the Federal Legislature and the States of the union. I also think that the Executive痴 performance will come under strong and constant scrutiny.

Opposition and scrutiny will force the Federal Executive to stick to the rule of law with a diligence we have never seen before. The Executive will be forced to cover itself under the existing constitutional and legal framework, and therefore will need to justify and explain all its actions according to well-developed and supported legal reasoning and legal authorities. I think it follows that the Executive will try to stretch the existing constitutional and legal framework to its very limits.

Consequently, I think that the difficulties Fox痴 presidency will encounter enacting new laws will drive the Federal Executive to make better and more sophisticated use of the Executive痴 power to issue regulations, a limited legislative function within the scope of the Executive痴 authority. Likewise, I think that the unprecedented scrutiny and supervision over Executive performance will force it to carefully justify all its activities according to legal authorities and with well developed legal argumentation. In short, we can reasonably expect important developments in the field of administrative law.

In the Mexican federal government the legislative power is vested in a National Congress (officially the Congress of the Union). The Congress of the Union is a bi-cameral body consisting of two houses, the Senate and the Chamber of Deputies (a House of Representatives). The Senate is comprised of 128 Senators: Two are elected in each State of the Union by direct and universal vote; Another Senator is elected from each state by the members of the first minority from the opposing parties; and 32 Senators are elected by an indirect vote in one national electoral circumscription. The Chamber of Deputies is made up of 500 deputies: 300 elected by direct and universal vote from 300 federal electoral districts, and 200 elected by indirect vote in five federal electoral circuits. The Senate is elected in its entirety every six years, and the Chamber of Deputies is elected in its entirety every three years.

In addition to its authority to enact federal legislation, the Congress acts as supervisory body for matters affecting the entire country, and it sanctions the President痴 decisions when necessary. In the past, the Congress itself and individual members of both houses have been severely criticized for their subordination to the will and political authority of the President. However the setting that allowed this to occur has changed and the present conformation of both houses of Congress is no longer conducive to such subordination. We can reasonably expect a body that will be more active and deliberative that ever before.

The third branch of the Mexican federal government is the Judiciary. One of the critical transformations in the Mexican legal system occurred six years ago pursuant to a Constitutional Amendment published on December 31, 1994. At that same time President Zedillo began his term. This Constitutional Amendment reduced the number of Justices sitting on the Mexican Supreme Court from twenty-six Justices to eleven. The process of appointing Justices to the Supreme Court was clarified and a Judiciary Council was created. The powers of the Supreme Court were tailored to stress its function as a constitutional court. Once the amendments were published all but two of the Supreme Court Justices were fired (officially, they announced their decision to retire from office) and the process to appoint the new justices for the Supreme Court was initiated. Interestingly, this (I am sure, unplanned) judicial earthquake occurred when the most devastating economic crisis and the so-called Tequila Effect jeopardized the world. Thus, the Mexican Judicial Revolution occurred almost unnoticed.

The restructuring of the Mexican Judiciary was not the only major change delineated in the Constitutional Amendments of 1994. The Supreme Court was also vested with the power to give effect erga omnes to those resolutions declaring certain Acts of Congress unconstitutional.

During the term of President Zedillo the finances of the Judiciary strengthened substantially, and new federal courts were created in response to actual needs. The process to select candidates for judgeships is more professional. Salaries for the members of the judiciary have improved significantly. Specialized training received by members of the judiciary is now first rate and the federal court facilities have been significantly improved. This changes have not gone unnoticed abroad and in a recent story published by the Washington Post, Kevin Sullivan and Mary Jordan wrote, 的n ways large and small, the Mexican Supreme Court is beginning to assert itself as a stronger, more independent institution.

As I write this report, new and significant changes are being gestated and the role of the Mexican Judiciary will again strengthen. In November 1999, the President of the Supreme Court made a call to the Mexican legal community asking members to send their comments and ideas for the revision of the Statute on the Procedure of Amparo. At the same time, an eight-member commission was appointed to review these suggestions. This month, the Commission formally submitted its conclusions for amendments to the Statute on the Procedure of Amparo. The Amparo procedure is the cornerstone for the protection of constititutionality and legality within the Mexican system. This statute regulates a federal procedure that allows all Mexican subjects to enlist aid from the federal courts to stop any government action that threatens to infringe on the constitution or the rule of law. The Amparo procedure also empowers the federal courts to enforce the provisions of the Mexican Constitution and to review the legality of any act carried out or implemented by any government authority (federal, state or municipal).

The amendments proposed by the commission left only 18 articles untouched. For all practical purposes the Commission is proposing to amend the entire statute. Included among its projects is enhancing the ability to request the protection of the Federal Judiciary on constitutional matters. Furthermore, the amendments to the Statute on the Procedure of Amparo propose to strengthen the Mexican system of judicial precedents, raising the possibility that some judicial precedents may have effect not only inter partes but erga omnes.

Carlos A. Gabuardi
JURIST Mexico Correspondent
J. Salazar y Cia.

October 9, 2000


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