Washington, DC

Political Coordination Committee
Mexican Chamber of Deputies Deputy Francisco Rojas Gutiérrez

Deputy Josefina Vásquez Mota
Deputy Alejandro Encinas Rodríguez
Deputy Juan José Guerra Abud
Deputy Pedro Vásquez González
Deputy Reyes Tamez Guerra
Deputy Pedro Jiménez León

To the members of the Political Coordination Committee:

On behalf of Human Rights Watch, I am writing to urge you to approve the human rights reforms to the constitution passed by the Senate on April 8, 2010 which are currently being considered by your respective parties in the Chamber of Deputies.

Approving these reforms would constitute a major step towards establishing greater protection for human rights in Mexico, and would lay a solid legal foundation for the State’s commitments in international treaties. We strongly urge your party members, and the Chamber as a whole, to approve the reforms before the end of the current legislative period.

We applaud the significant reforms drafted and approved by the Chamber in April 2009, many of which remain in the Senate version. As we stated in an October 2009 letter to the Senate, these reforms go a long way towards incorporating the language of human rights and Mexico’s international obligations into the constitution.[1] The reforms include compelling the State to respect human rights, and investigate and punish abuses;[2] making human rights one of the core principles guiding foreign policy;[3] and ensuring autonomy in management and budget of State institutions charged with monitoring human rights.[4]

The constitutional reform approved by the Senate improves upon the positive changes approved by the Chamber of Deputies. In particular, the Senate version establishes the following fundamental principles in the constitution:

1. It affirms the relevance of international law.

The Senate reform elevates the rights enshrined in international treaties signed by Mexico to equal footing alongside the rights guaranteed by the Mexican Constitution.[5] As a party to international treaties, Mexico has an obligation to give effect to such rights in its domestic law-an obligation the reform would finally fulfill.

This reform is particularly timely, given the UN Human Rights Committee’s recent recommendation that Mexico “should align the project of the Constitution with norms of international human rights law, especially with that of the ICCPR.”[6]

2. It establishes a clear definition of how and under what circumstances a state of emergency may be declared, and what rights may be suspended.

International human rights standards limit the rights that may be suspended during states of emergency, and establish basic rules states must respect when derogating such rights. First, fundamental rights may only be derogated “in times of public emergency that threaten the life of the nation.”[7] Second, certain basic rights are non-derogable, and thus may never be suspended.[8] And third, restrictions on derogable rights must be strictly required by the exigencies of the situation, as well as provided by law, exceptional, and temporary.[9]

The reforms to article 29 approved by the Senate incorporate these rules into the constitution, and establish a legal and procedural framework for establishing a state of emergency that complies with Mexico’s international obligations.[10] Such reforms will help ensure that the severity, duration and geographic scope of derogations are proportionate to the nature and extent of the threat to the nation. They will also safeguard the rights of citizens against excessive derogations of rights during states of emergency.

We would like to remind the honorable Committee chairs that, should the Chamber of Deputies approve the Senate reforms, the constitution will empower Congress to declare the end of a state of emergency. As such, if and when a state of emergency is declared, we would urge Congress to institute a mandatory procedure whereby periodic reviews are conducted to evaluate whether the derogation of the exercise of certain rights continues to be necessitated by, and proportional to, the evolving circumstances.

3. It empowers the National Human Rights Commission (CNDH) to conduct unobstructed investigations and hold state officials who fail to respond to its recommendations accountable.

As the government body tasked with safeguarding human rights, the CNDH should have full investigative authority to conduct inquiries into abuses. The limits on the CNDH’s access to information held by government authorities threaten to undermine its effectiveness. The reforms approved by the Senate would remove all such limits.[11]

In addition, the reforms would require state officials to respond to the CNDH’s recommendations, and empower Congress to hold officials who fail to do so accountable.[12]

In Human Rights Watch’s 2008 report on the CNDH, we recommended that when the CNDH found that state actors were failing to implement a recommendation, it should actively press the said authorities to fulfill their obligations to remedy abuses.[13] Specifically, we recommended that the CNDH should “advocate for administrative sanctions to be imposed on officials who fail to address the human rights violations it documents.” The current reforms, if passed by the Chamber, would incorporate these recommendations into the law.

4. It protects against the arbitrary expulsion of foreigners.

The existing article 33 of the constitution empowers the executive to make foreigners “abandon the national territory, immediately and without prior trial” if the president considers that their presence is “inconvenient.”[14] This leaves foreigners vulnerable to arbitrary expulsion, and denies due process protections guaranteed by international law.

The International Covenant for Civil and Political Rights, for example, states that a person subject to expulsion should, “be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority,”[15] which should be independent and impartial.

The constitutional reform approved by the Chamber in April 2009 improved upon article 33 by ensuring that foreigners would benefit from the rights recognized in the constitution. However, it simultaneously undermined this protection by stating that the judgment of the executive to expel foreigners “will be definitive and irrefutable.”[16] This clause would have limited foreigners’ right to appeal and due process.

The reforms approved by the Senate remedy this contradiction, maintaining the rights afforded to foreigners, while eliminating the language placing limits on the possibility to appeal a decision regarding expulsion.[17] The reform implies that foreigners subject to such proceedings will benefit from the right to appeal (amparo) and from due process guarantees included in the constitution and protected by international law. This is a marked improvement.

In conclusion, the reforms approved by the Senate will benefit all citizens by promoting and protecting respect for human rights in Mexico. We respectfully urge your committees and the Chamber of Deputies to grant the highest priority to the debate of these reforms, and approve them during the current legislative period.

Finally, we would also ask that you please share this letter with the members of your respective parties and that you encourage your party members serving on the commissions charged with approving the Senate reforms, namely the human rights commission and the constitutional issues commission, to swiftly approve the reforms in full and pass them along to the Chamber for a vote.

Best Regards,

José Miguel Vivanco
Executive Director

CC: Human Rights Commission, Chamber of Deputies; Constitutional Affairs Commission, Chamber of Deputies

Source: Human Rights Watch

__________________________

[1] Letter from Human Rights Watch to Mexican senators Beltrones, Creel, and Aureoles, October 8, 2009, http://www.hrw.org/es/news/2009/10/08/carta-los-senadores-beltrones-creel-y-aureoles.

[2] Minutes of Draft Legislation, approved by the Mexican Chamber of Deputies on April 23, 2009 (Chamber version), art. 1: "All authorities, in the exercise of their respective functions, have the obligation to promote, respect, protect and guarantee human rights in accordance with the principles of universality, interdependence, indivisibility and progressive realization. As a consequence of this obligation, the State must prevent, investigate and sanction human rights violations." All translations by Human Rights Watch.

[3] Ibid., art. 89, para. X: "[T]he respect, protection and promotion of human rights are normative principles that should guide the executive power in developing the foreign policy of the State.”

[4] Ibid., art. 102, item B: "The legislatures of the federal entities shall ensure that the agencies responsible for safeguarding human rights have budgetary and operational autonomy, legal status and separate assets."

[5] Minutes of Draft Legislation, approved by the Mexican Senate on April 8, 2010 (Senate version), art.1: “[A]ll persons shall enjoy the human rights enshrined in this Constitution and in the international human rights treaties to which Mexico is party, as well as the guarantees for their protection.”

[6] Human Rights Committee, “Concluding Observations,” March 22, 2010, http://www2.ohchr.org/english/bodies/hrc/hrcs98.htm. The Committee goes on to say that, “Additionally, a procedure should be established through which the compatibility of domestic laws with international human rights obligations may be challenged.”

[7] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Mexico on March 23, 1981, art. 4, para. 1.

[8] Ibid., art. 4, para. 2.

[9] ICCPR, art. 4, para. 1. See also the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, http://www.unhcr.org/refworld/docid/4672bc122.html.

[10] Minutes of Draft Legislation (Senate version), art. 29: “The exercise of the right to non-discrimination, to recognition of legal personality, to life, to personal integrity, to protection of the family, to one’s name, to nationality; the rights of children; political rights; freedom of thought, conscience and religion; the principle of legality and retroactivity; the prohibition of death penalty; the prohibition of slavery and servitude; the prohibition of enforced disappearance and torture; and the judicial guarantees essential to the protection of such rights shall never be restricted or suspended.Any restriction or suspension of the exercise of these rights and guarantees shall be founded and justified by the terms established in this Constitution, be proportionate to the threat at hand, and always be consistent with the principles of legality, proclamation, publicity and non-discrimination. When a restriction or suspension of the exercise of rights and guarantees comes to an end, either because it has expired or because Congress has decreed it to, all legal and administrative measures adopted since its inception shall be immediately considered void. The Executive shall not be entitled to make any observations to the decree by which Congress revokes the restriction or suspension. Any decrees issued by the Executive during the restriction or suspension period shall be subject to an ex officio and immediate review by the Mexican Supreme Court, which shall decide on their constitutionality and validity with the utmost speed.”

[11] Ibid., art. 102(B): “[The National Human Rights Commission] shall investigate cases involving grave human rights violations where it considers it appropriate to do so… In the course of this procedure, the Commission shall exercise investigative discretion within the constraints of the law, and may not be denied access to information by any authority.”

[12] Ibid.: "All public officials are required to act upon the recommendations issued [by the agencies tasked with safeguarding human rights]. Any authorities or public officials failing to accept or implement the recommendations should establish, justify, and make public their refusal; in addition, the Senate or, during a recess, the Standing Committee or the legislatures of the federal entities, as appropriate, may, at the request of these agencies, call on the responsible authorities or public officials responsible to appear before said legislative bodies to justify their refusal.”

[13] Human Rights Watch, Mexico’s National Human Rights Commission, vol. 20, no. 1(B), February 2008, http://www.hrw.org/en/reports/2008/02/12/mexico-s-national-human-rights-commission-0.

[14] Mexican Constitution, art. 33, http://www.diputados.gob.mx/LeyesBiblio/pdf/1.pdf.

[15] ICCPR, art. 13.

[16] Minutes of Draft Legislation (Chamber version), art. 33: “Foreign persons shall be any persons who do not possess the qualities determined in article 30. Foreign persons shall be entitled to the rights afforded to them in the present Constitution. Following a hearing, the Executive of the Union shall have the exclusive power to make any foreign person whose presence is deemed inconvenient leave the national territory. The law shall regulate the applicable administrative procedure as well as the duration and place of detention. The resolution of this procedure shall be definitive and irrefutable”.

[17] Minutes of Draft Legislation (Senate version), art. 33: “Foreign persons shall be any persons who do not possess the qualities determined in article 30 of the Constitution and shall be entitled to the human rights and guarantees recognized in this Constitution.
Following a hearing, the Executive of the Union shall have the power to expel foreign persons from the national territory, pursuant to the law, which shall regulate the applicable administrative procedure as well as the duration and place of detention”.