3rd Conference: Administration of Justice in Mexico: What does the Future Hold?

Reproduced for the InterAm Database with permission of the

United States-Mexico Law Institute, Inc.

University of New Mexico School of Law

Albuquerque, New Mexico 97131-1431

tel: (505) 277-7825

fax: (505) 277-0068

The United States-Mexico Law Institute, Inc. is a non-profit corporation organized under the

laws of the State of New Mexico, U.S.A.

ADMINISTRATION OF JUSTICE IN MEXICO: WHAT DOES THE FUTURE HOLD?

Rafael Estrada Samano [FNa1]

I. INTRODUCTION

A. Article 17 of the Political Constitution of the United Mexican States
Among the fundamental rights listed in Chapter I (Individual Guarantees) of
the Mexican Federal Constitution, [FN1] there is a right established in Article
17 which states:
No person may administer justice by himself .... Any person has the right
to secure administration of justice from tribunals which shall be ready to
administer it within the terms established in the laws by issuing their
resolutions in a prompt, thorough and impartial manner. Their service shall
be gratuitous, therefore, judicial costs are prohibited. Federal and state
laws shall establish the necessary means to assure the independence of the
tribunals and the full execution of their resolutions .... [FN2]
This important constitutional provision was approved without any discussion
or debate and by unanimous decision of the Constituent Assembly in Queretaro,
during its Nineteenth Ordinary Session, held on December 21, 1916. [FN3] It
should be noted that it is a fundamental political decision which is firmly
rooted in the right that all men have to enjoy a just order through the
jurisdiction.
When a controversy arises between two or more individual parties with respect
to the meaning of the law, or in connection with what is just for each of them,
only two procedures may be followed to solve such controversy: either justice
is administered through one party's arbitrary use of force or the parties
submit themselves to a public entity, i.e., a court of law which will
adjudicate impartially. There is, of course, an intermediate institution: the
arbitration, which likewise may be used to solve controversies and requires the
will and consent of the parties to reach a solution outside the public courts
of law.
Once the ancient and uncivilized practice of the vindicta privata (private
revenge) has been supplanted by the rule of law, it should be accepted
*36 that submission to the jurisdiction of the courts is an unavoidable
principle for the existence of the constitutional order, as well as for the
definition and adjudication of individual rights. Furthermore, it is a
requirement for the effectiveness of the rule of law.
But likewise-and this should be stressed very strongly-if there is a right to
seek and attain justice, it follows that there is also a right of access to the
judicial system which declares it, because those entities charged with the
function of the administration of justice should not act by grace, but by
duty. [FN4]

B. Actual Situation of the Administration of Justice
Notwithstanding the high principles and the noble purposes underlying
Article 17 of the Mexican Constitution, it is widely acknowledged that in
reality the administration and procuration of justice in Mexico, as well as the
respect for the rule of law and the observance of human rights, is quite
distant from fulfilling these high standards.
Some of the main areas of concern in this respect are dealt with in the next
section. For now, it should be noted that during the recent electoral campaign
not only the opposition parties, but also the ruling official party (Partido
Revolucionario Institucional - P.R.I.) recognized the deficiencies in the
administration of justice as one of the most important issues and offered wide
sets of proposals to cope with the problem. [FN5] The two proposals most
representative of the views of the electorate were included in the P.A.N.'s
political platform:
DIAGNOSIS: ... ATROPHIC JUDICIAL POWER ... (26) The Judicial Power of the
Federation is not the third power described by the Constitution. In a moment
of Mexico when the reform of the State is a central issue ... the Judicial
Power shows a stubborn resistance to assume any transformation which might be
different to its mere technification. There are confusions between autonomy
and isolation, between immobility and immobilism, and the gravest: a gradual
deterioration of its moral authority is perceived .... (27) ... It is
necessary to guarantee the autonomy of the Federal Judicial Power and at the
same time to establish provisions in order to force the judges to fulfill
their constitutional duties .... (41) In Mexico there is an increase in
criminal activity, each time more violent and organized .... Public
insecurity is also growing .... (42) Insecurity *37 is aggravated by
corruption in the police bodies. The way in which some members of these
bodies grant protection to criminal organizations is shocking .... (43) The
procuration of justice is often subject to political pressures which deprive
it of the function of assuring protection, under the law and without any
discrimination, to the goods and values which are most important for
Mexicans.
This gives room for impunity, especially in the cases of some public
officers .... (48) Due to the absence of the rule of law, the Mexican public
administration is invaded by corruption .... 2. POSITION ... (64) It is
essential for the effectiveness of the rule of law that the Judicial Power be
completely independent of the Legislative and Executive branches, but
responsible to the Nation. An independent judiciary is the last safeguard for
the rights of individuals ... (75) The rule of law requires that the public
powers guarantee to individuals the administration of justice, the protection
of their lives, health and goods, as well as the safeguard of the public
order .... (76) The State must give special attention and assign enough
resources to combat criminal activity and organized crime .... 3. PROPOSALS.
(106)
The autonomy of the Judicial Power shall be respected. Furthermore, a
General Judicial Council shall be created ... (107) New and more stringent
requirements to become a Supreme Court justice shall be established ... (109)
An operative, administrative and organizational modernization of the Judicial
Branch of the Federation shall be promoted .... [FN6]
On the other hand, Ernesto Zedillo, presidential candidate of the official
party, P.R.I., stated: "We face urgent and grave tasks with respect to justice
and security," and he submitted his proposal "which seeks to incorporate new
instruments to rely on a more modern and efficient system of justice," in ten
points:
1. To achieve the professionalization, dignification and moralization of
the members of public security bodies ...;
2. To enhance the administration of public security ...;
3. To make police coordination a reality ...;
4. To conduct a great campaign for crime prevention ...;
5. To fight against drug trafficking as well as to prevent and react before
abductions and other high-impact crimes ...;
6. To modernize the function of the Attorney General's office ...;
7. To modernize the system of justice ...;
8. To ensure the independence of judges and quality in the administration
of justice ...;
9. To guarantee access to justice for all ...; and
10. To establish effective mechanisms for the judicial review and control
of acts of the authorities.
Zedillo finished by saying: "Today, I ratify before the nation my will to
change. I adhere myself once again to the popular clamor for security, and
justice for the citizenship." [FN7]
*38 The political parties and their candidates are not the only voices
that have expressed concern for the pitiful state of the administration of
justice in Mexico. Intellectuals, scholars and practitioners have also joined
the popular outcry. In September 1994, two prominent lawyers and professors of
law at the National Autonomous University made important remarks on the issue
to an influential Mexico City newspaper. In one interview, Dr. Raul Carranca y
Rivas maintained that:
[t]he fierce presidentialism has inhibited the Judicial Power to fulfill
its functions. The administration of justice has been impaired by the Federal
Executive's interference. Furthermore, with the amendments and reforms to the
Constitution and the laws promoted by that same Executive, the powers of the
Nation's Supreme Court of Justice have been atomized .... Therefore, it is
urgent to restore the Judicial Power in all its force, in order for it to
really be the highest organism in the administration of justice .... Ernesto
Zedillo, virtual President-Elect, is under the obligation to honor, like a
man and a citizen, the compromise he acquired with the people: to respect and
to fortify the Judicial Power, through the obeyance of the constitutional
provisions and the avoidance of the trend to take powers which do not pertain
to him. [FN8]
Carranca expressed the wish that Zedillo's statements on the issue "are
not a campaign promise only." [FN9] In turn, Dr. Jose Luis Soberanes declared
that "the administration of justice leaves much to be desired, and the
population has no confidence in it." [FN10] He demanded a profound and integral
reform of the Judicial Power, because in Mexico crime is not punished, but
poverty is. [FN11]
The lack of confidence in the administration of justice is due to the fact
that the Mexican State does not fulfill its obligation to administer justice
in a prompt and expeditious manner because, among other things, the Supreme
Court is influenced by politics. Thus, it is urgent to stop the interference
the Federal Executive exercises over the Judicial Branch ... the people will
believe in justice again when it is clear that changes in the Judicial Branch
force those who administer justice to act impartially. The public confidence
will be restored, neither with addresses nor with good intentions, but with
tangible facts. [FN12]

II. MAJOR PROBLEMS AND MAIN CONCERNS

A. Mexican Presidentialism and the Independence of the Judicial Branch
Ever since that nation began its constitutional life as a free and
independent state, the fundamental laws of Mexico adopted the principle
*39 of "division of powers," as has been classically phrased by Locke and
Montesquieu. The Constitution presently in force, seventy-seven years after its
issuance, still recognizes division of powers as the cornerstone of Mexico's
political organization; however, it does not grant that principle the rigid and
absolute character of its original interpretation. Today it is generally
accepted that the necessary distribution of state functions among the several
branches of government implies, by itself, a reciprocal control among the
branches: a system of checks and balances which additionally produces a
coordination of the branches to act jointly and in collaboration. There is no
question, however, that each of the three traditional branches of government,
legislative, executive and judicial, must be exempt of any subordination or
dependency with respect to the other branches.
It should be noted that within this Mexican constitutional framework, the
federal Judicial Power occupies a relevant place because the exercise of the
jurisdictional power primarily vested in it not only refers to the resolution
of conflicts, controversies and legal issues that arise in the ordinary lives
of the state and its citizens, but also to the interpretation and defense of
the Constitution at the highest level of authority.
Therefore, the federal judiciary becomes the interpreter and the guard of the
whole legal order. Its mission as supreme interpreter of the Fundamental Law
leads to the conclusion that the judicial branch is the branch of government
most tightly related to the observance and defense of fundamental human rights,
as well as to the protection and survival of the constitutional system. To
properly discharge these vital duties, the judicial branch has to rely on its
independence and autonomy from the other government branches of the Mexican
state. [FN13]
The preceding theory, however, is no more than that, a theory. The
Mexican political system is a system of government that was originally intended
to be merely presidential, as opposed to parliamentary. However, the system has
developed into a presidentialist one: the chief executive often acts outside of
constitutional bounds in the exercise of certain powers which supposedly have
been conferred upon him by the political system itself, rather than by the
Fundamental Law.
In a very extensive and serious analysis of the Mexican presidentialism
phenomenon, Dr. Jorge Carpizo refers to such powers as "metaconstitutional
powers," i.e., powers which go beyond the limits of the powers effectively
granted by the Constitution. Such powers are, according to Dr. Carpizo, (a) the
ones which derive from being the real leader of the official party, P.R.I.,
which include the appointment of that party's candidates for the Federal
Congress, the state governors and the mayors *40 of the principal
municipalities; (b) the appointment of his successor in the presidency; and (c)
the appointment and removal of state governors. [FN14] Although Carpizo's
analysis and discussion are valid and accurate, these supposed powers should
not be labeled as being "metaconstitutional," but instead as clearly
"unconstitutional."
This hypertrophic enlargement of the powers of the Mexican presidency led
Daniel Cosio Villegas to maintain that Mexico is the only republic in the world
which is governed by an absolute monarch for six years, "and the requirement
that a person be a member of the revolutionary family to become president leads
the scurrilous commentator to refine the foregoing definition by saying that it
is a six-year absolute and hereditary monarchy." [FN15]
It would certainly be interesting to discuss at length the historical
development of the judicial branch in Mexico and of its main organism, the
Supreme Court of Justice. However, this subject is too extensive to be included
in this presentation. [FN16] For now, it should only be noted that "the
independence of the judiciary has been a constant issue in Mexico's history.
With more or less good judgment, the diverse Constitutions have established
systems to guarantee such independence. There is the belief that impartial
justice is an indispensable value." [FN17]
Again, it would appear that the problem is not one of absence of provisions
in the Constitution and the laws, but one of observance and fulfillment of
their mandates. Carranca y Rivas charges that Mexican presidentialism has
impaired the independence of the judiciary. [FN18]
It appears that a prestigious justice of the Supreme Court of Justice,
Mariano Azuela Guitron, concurs with Carranca's opinion. Recently, Azuela
declared that "the administration of justice in Mexico has been disarranged by
the interference of the Federal Executive, and because the Supreme Court of
Justice has been utilized as a 'political springboard' by politicians who have
been appointed to the Court as a transitory position while seeking to satisfy
their political ambitions in other positions." [FN19]
It is necessary to insist and stress that independence of the judiciary
depends basically on the will of those who are its members. [FN20]
Nevertheless, *41 many scholars and practitioners have proposed a series of
measures and constitutional amendments to avoid future lamentable experiences
when the federal judiciary shows lack of independence and even abdicates its
functions. An example of such an experience took place when President Jose
Lopez Portillo nationalized the banking system in 1982. To say the least, the
behavior of the federal courts in this important matter was dismal. [FN21]
Among the mechanisms and amendments that have been proposed to assure the
independence of the federal judiciary and the Supreme Court, and to restore
their prestige and make them fully assume their functions, are the following:
(a) to establish the judicial career; (b) to make a qualified selection of
federal judges, magistrates and justices; (c) to provide them with adequate
compensation, rewards and recognition, as well as a decent retirement; (d) to
make judicial officers non-removable from office; and (e) to amend the
procedure to appoint the justices of the Supreme Court of Justice. Today, the
procedure for appointing Supreme Court justices is very similar to the one
followed in the United States. However, the advice and consent of the Mexican
Senate is widely regarded as a mere "rubber stamp" for those appointed by the
Chief Executive. Consequently, candidates for a justiceship are often
politicians who once attended law school, but who have either not practiced the
legal profession nor served as judges on the bench.
Azuela Guitron has even proposed that individuals who accept and serve a
justiceship in the Supreme Court should be barred from accepting any appointive
or elected public office in the future. This would eliminate the practice of
using the Supreme Court as a political springboard or, even worse, as a shelter
for politicians who are temporarily in misfortune, due to the continuously
changing circumstances of politics. [FN22]

B. The Lack of a Department of Justice
The revolutionary Constituent Assembly of Queretaro, during its last session
January 29-31, 1917, approved the text of Transitory Article 14 of the new
Federal Constitution without any precedent, without paying much attention to
the issues involved during the debate, and with a great degree of haste.
Transitory Article 14 prohibited, proscribed and extinguished the Department of
Justice, a ministry that had existed in Mexico since its independence from
Spain. It must be acknowledged that there is a great variety of services which
the administration of justice implies and requires, and which must be rendered
by the executive branch rather than by the judiciary. This is because the
judicial branch must primarily, *42 and almost exclusively, preoccupy itself
with exercising the jurisdictional power of the State.
After a very thorough investigation, [FN23] this author has concluded that
the Constituent Assembly's rationale for proscribing a ministry as important as
the Department of Justice is not clear. A respected professor of Mexican
constitutional law, F. Jorge Gaxiola, guesses that such an extreme measure was
taken because during the long dictatorship of Porfirio Diaz, the Department of
Justice was used by the Executive Branch as a channel to unduly influence
judicial resolutions, thereby depriving judges, magistrates and justices of
their independence and autonomy. However, Gaxiola's conclusion is not based
either on historical fact nor on the arguments discussed during the above-
mentioned session of the Queretaro Assembly.
In any case, it is clear that since 1917 the Mexican public
administration has lacked a Department of Justice. It is also true that the
functions and services traditionally attributed to a Department of Justice were
either improperly allocated to the Department of the Interior and the Office of
the Attorney General or, worse yet, they were not assigned to any governmental
agency at all. The administration of justice has undoubtedly suffered negative
effects as a result.
In 1957, the influential journal Novedades conducted a survey on the state of
the administration of justice in Mexico. Distinguished jurists expressed their
opinions about the deficiencies in the federal and state tribunals. One such
jurist, Dr. Antonio Martinez Baez, a conspicuous Mexican scholar, opined that
the grave backwardness so apparent in Mexican justice was due to the
circumstance "that in our political organization there does not exist an
organism or institution charged with the task of watching the administration of
justice, not only pursuant to legal provisions, but in accordance with ethical
and moral imperatives." [FN24] Martinez Baez concluded that the adequate remedy
for such a situation was "the immediate creation of an organism that should be
responsible for paying attention to the material, moral and technical problems
which affect Mexican justice today. Such an organism should act with due
respect for the absolute independence of the Judicial Power." [FN25]
This idea was later discussed in depth and adopted by the Barra Mexicana,
Colegio de Abogados, a professional association. [FN26] During 1961 and 1963,
the Barra organized a series of lectures, among them an extensive essay by
Martinez Baez. Such lectures and studies were published by the Barra de
Abogados under the title "For a Department of Justice." [FN27]
*43 By its own nature, Transitory Article 14 of the Constitution was
intended to pertain to temporary situations; it has resulted, however, in a
very permanent and persistent provision which subsists as a prohibition to
create a Department of Justice. Meanwhile, the very important functions
traditionally attributed to that department have not been discharged by the
Office of the Attorney General, even though the latter was styled "Legal
Counsel of the Federation" in a different constitutional provision-Article 102.
There is no question about the harm that this careless oversight has caused. A
convenient and desirable development of many aspects related to the
administration of justice in Mexico simply has not been possible.

C. The Amparo Lawsuit and the "Otero Formula"
The system to control the constitutionality of acts performed by both local
and federal entities, which has been adopted by the Mexican Constitution, is
solely a judicial function. This is due not only to the nature of the organ
which is charged with such function, the federal judiciary, but also because
its exercise implies a sequence of acts of a judicial character. As a result, a
true jurisdictional proceeding takes place and may result with the declaration
of a law as being unconstitutional, or of an act by any authority as being in
violation of the fundamental individual rights. Such a system has been shaped
through "the most important and fruitful legal institution in the nation's
legal order and, without any doubt, the only original and creative work made by
Mexican jurists: the amparo lawsuit." [FN28]
Indeed, the amparo suit is a Mexican legal institution similar in its
effects to such Anglo-American procedures as habeas corpus, error and other
forms of injunctive relief. It has undergone a long evolution since it was
first incorporated in the State Constitution of Yucatan in 1841 and then in the
Federal Constitution of 1857. Today, its principal purpose is to protect
private individuals in the enjoyment of rights granted to them by the first
twenty-nine articles of the Constitution, commonly known as "Individual
Guarantees." [FN29]
It should be noted that the amparo lawsuit has evolved into a highly complex
institution performing three functions: the defense and protection of the
"Individual Guarantees," the determination of the constitutionality of federal
and state legislation, and cessation.
The second of these functions deserves special treatment for purposes of this
article. With respect to its effects, the amparo resolution affects only the
parties who have intervened in the procedure and pertains solely to the
specific case that has been brought before the federal judiciary. This is the
constitutional principle known as "relativity of the amparo
*44 resolutions." This principle derives from the "Otero formula," so
designated because it was conceived in 1847 by Mariano Otero, one of the
creators of the amparo lawsuit, when he proposed the adoption of this
constitutional procedure.
The Otero formula and the principle of relativity of the amparo resolutions
acquire great importance with respect to the amparo complaints which are
brought to challenge the constitutionality of a given law. A declaration of
unconstitutionality issued by the federal judiciary does not have the effect of
repealing the law erga omnes. It does not generate the obligation of the
legislative body to repeal the unconstitutional law. Its effects are limited to
establishing that the law declared unconstitutional shall not apply to the
specific case and with respect to the parties involved in the amparo action.
Therefore, as Dr. Juventino V. Castro has pointed out, "there is no such thing
as amparo against unconstitutional laws; there is only amparo against the
application of such laws to a specific case which has been raised by an
individual who has been diligent enough to request it from the Federal
Judiciary." [FN30] Dr. Castro has conducted perhaps the most complete research
work on the Otero formula. He concludes that it was only partially adopted and
that, therefore, it is historically inaccurate and unfair to blame Mariano
Otero for the application of the principle of relativity of the amparo sentence
to cases where a Congressional law is declared unconstitutional. [FN31] Based
on strong reason and on impeccable logic, Castro concludes-and this has been
his position since long ago-that the effects of the amparo resolution should be
the annulment and repeal of such law erga omnes. [FN32] He supports his
assertion in the following quote by the famous Italian Professor Calamandrei:
"A system may not be deemed a civilized order when the free application of
discredited laws is accepted." [FN33]
Other authors also maintain that the principle which derives from the
Otero formula requires a revision. Antonio Carrillo Flores stated that the
Otero formula has already met its objectives. Therefore, he proposed that:
the amparo resolutions condemning a law as unconstitutional have effects
not only for the specific case, but for any other case. Perhaps, as I have
dared to propose, a realistic and intermediate formula would be that such
resolutions notify the respective Congress, either Federal or State, so that
the latter would proceed to repeal the law or to modify it and adjust it to
the terms of the Supreme Court of Justice's resolution. [FN34]
*45 Hector Fix Zamudio also shares the idea of extending the traditional
Otero formula in order to
adopt the contrary principle, i.e., to establish the "erga omnes" effects
of the Supreme Court's findings of unconstitutionality of legislative
provisions, as it has been accepted, gradually but inexorably, not only
through the European constitutional tribunals of the Austrian type, but also
throughout Latin America .... [FN35]
In accordance with the Constitutional principle of collaboration among the
branches of government, to attribute general or erga omnes effects to a
judicial decision declaring a legal provision unconstitutional would not
necessarily constitute an intromission by the judicial branch into the
legislative function: the judiciary would still be powerless to initiate bills
or laws. More precisely, it would enhance collaboration among the two branches
in seeking the improvement of the legal order, and its development within the
constitutional framework.
On the other hand, the amparo lawsuit's objectives are to defend and protect
the enjoyment of the "Individual Guarantees" and, in general, to control the
constitutionality of acts of the authorities. These two objectives are poorly
served if the effects of the amparo resolution continue to be confined to the
specific case and to the individual who sought the constitutional protection,
especially if the subject matter involved is a law, by definition an order or
mandate with general and abstract effects. [FN36]
Finally, in a very recent editorial entitled Light and Shadow in Justice, Dr.
Sergio Garcia Ramirez lists twenty-two concerns regarding the administration of
justice in Mexico. [FN37] Listed under No. 12 is a reference to the Otero
formula. With a high degree of resemblance to Carrillo Flores' opinion, Garcia
Ramirez states that:
the Otero formula avoided collisions among the Powers: conflicts between
the Legislative Power which enacts a law, or the Executive Power which issues
a set of regulations, and the Judicial Power that deems such provisions
unconstitutional. This has allowed the development of the Mexican Amparo.
However, the hour has come-perhaps it came long ago-to revise that formula or
to find progressive solutions for the sake of justice. One of these solutions
may be the official communication by the Attorney General's Office [FN38] to
Congress of the ruling declaring the unconstitutionality of the law and with
a legal opinion by the Attorney General, so that the legislature revises its
own act, if that be the case. Thus, each government branch would fulfill its
natural attributes and the danger of a conflict would be reduced. [FN39]
*46 As stated before, the Mexican amparo lawsuit has undergone a
long evolution that has required a considerable effort from jurists,
practitioners and members of the judiciary. It would be a pity to stop this
evolution; moreover, it would be a serious mistake and a disservice to justice.

* * * * *
This study has been an attempt to deal in depth with three of the major areas
of concern with respect to the administration of justice in Mexico. However, it
should be noted that there is a long list of other problems and concerns. It
would be impossible to deal with all of them in the same depth; therefore, it
appears that short mention of other issues is in order.

D. Slowness and Tardiness
It is often stated that delay in the administration of justice is equivalent
to a denial of justice. If this is so, then Mexico is plagued with denials of
justice. An excessive formalism in the proceedings, indolence on the part of
judges and judicial officers, and the activities of certain litigious lawyers
who are used to taking advantage of the sluggishness in the administration of
justice are the main causes for this situation.
More than a matter of amendments to the procedural laws to reduce or
eliminate terms, what is truly necessary is to create a new "type of
proceedings," [FN40] which offer celerity and at the same time observe the
essence of due process of law. It is true that this has been attempted several
times without success. In fact, the amendments and reforms have at times
represented more of a backwards motion than a progressive one. From a practical
standpoint, there is a great deal to do on this issue in all areas of the law.

E. Proliferation of Specialized Agencies and Tribunals
Perhaps with the intention of coping with some of the deficiencies of the
ordinary jurisdiction, there has been a trend in Mexico to create parajudicial
agencies within the Executive Power or specialized tribunals. In these entities
conciliation between the parties is normally mandatory, prior to the moment
when the litigation phase properly takes place. In many instances, like in the
case of the Federal Consumer Protection Agency (Procuraduria Federal del
Consumidor), this measure has produced good results, both from the viewpoint of
prompt solution of controversies and because it has diminished the workload in
the ordinary tribunals.
Among these newly created bodies, one governmental organization deserves
special mention. The National Human Rights Commission (Comision Nacional de
Derechos Humanos) was created in 1989 by decree of President Carlos Salinas de
Gortari to receive the complaints of Mexican citizens or inhabitants who
believe their human rights have been violated by a governmental authority or
public servant. Although these types of *47 violations could be relieved by
resorting to an amparo lawsuit, the excessive formalities, the complexity and
the difficulty in obtaining a quick resolution in an amparo have caused popular
recourse to the Human Rights Commission. When a complaint is filed, the
Commission secures information and evidence, and ultimately issues a
recommendation to the authority or public servant involved in the complaint.
Such recommendations are public, autonomous and non-mandatory; however, if a
criminal offense is involved, the Commission may proceed to file the
corresponding accusation before the Office of the Attorney General.
It should be noted that after its creation, it was soon realized that
the Commission lacked a constitutional entity. Therefore, the Federal
Constitution was amended by Paragraph B in Article 102 which regulates the
existence of the Commission and the similar commissions organized in each state
by the local governments.
Other parajudicial agencies or specialized tribunals which have recently been
created by the federal government are (1) the Economic Competence Commission
(Comision de Competencia Economica), which deals with antitrust matters
(curiously enough a very recent area of the law in Mexico resulting mainly from
Mexico's entrance into the global market, specifically through the North
American Free Trade Agreement (NAFTA)); [FN41] (2) the Superior Agrarian
Tribunal (Tribunal Superior Agrario), which was created as a result of the
amendments introduced in Article 27 of the Constitution to cope with problems
related to property and exploitation of agrarian lands; and (3) the Federal
Electoral Tribunal (Tribunal Federal Electoral), organized to resolve
controversies between the political parties and their candidates, on the one
hand, and the electoral authorities, on the other, that arise from contested
elections.
To these recently created entities, others that were organized years ago
should be added: the National Banking Commission (Comision Nacional Bancaria);
the Labor Tribunals (Juntas de Conciliacion y Arbitraje); and the Federal Tax
Tribunal (Tribunal Fiscal de la Federacion). All of these agencies follow the
tendency to create specialized bodies or entities for the solution of
controversies. It should be noted that each entity is subject to judicial
review and constitutional control through the amparo lawsuit, with the sole
exception of the Federal Electoral Tribunal, which has the power to issue final
and definitive resolutions.

F. The Role of Arbitration
The use of arbitration as an alternative instrument to solve controversies
and thereby administer justice in private matters has been acknowledged by
Mexican law for many years, but has rarely been used.
In the commercial arbitration context, a separate provision on arbitration
was included in the Commercial Code up until 1989. It is patterned after
international commercial arbitration rules and is expected to foster
*48 recourse to arbitration among merchants and commercial companies. The
international trade agreements or treaties to which Mexico has entered as a
party, such as NAFTA, will also enhance the use of international commercial
arbitration, as will the creation of multinational entities to solve
controversies that may arise between the NAFTA nations, or between citizens of
these countries and the government of a different member nation.

G. The Attorney General's Office (Ministerio Publico) and the Prosecution of
Criminal Offenses
This is an area where a complete treatise would likely not be enough to deal
with all the intricate problems posed by a very deficient and corrupt system
for the prosecution of criminal offenses. Practitioners and scholars, as well
as political parties and, in some instances, even government authorities,
accept that in Mexico criminality and organized crime are increasing, each time
with more violence and belligerency. Public insecurity is growing, aggravated
by corruption in the police bodies. The protection that some members of the
police bodies give to criminal organizations is especially scandalous. [FN42]
Professionalization of the police organizations and of the offices of
the attorneys general (Ministerios Publicos) has not been achieved. For one,
there is a lack of scientific bodies for the investigation and prosecution of
criminal offenses. Second, there is no civil service career in the public
security agencies. Finally, in order to achieve professionalization, it is
urgent to foster an ethical education in the different police academies.
Notwithstanding express limitations and prohibitions in the Constitution,
several police organizations have proliferated on the federal level. These
bodies duplicate each other's functions and propitiate out-of-control police
actions. As a result, insecurity for the common citizen has flourished. The
prosecution of crime is often subject to pressures of a political character
which deprive it of the high function of protecting, in accordance with the law
and without any discrimination, the most important goods and values of the
Mexican community. The current situation allows for the exercise of authority
with impunity, especially in the case of some high public officers.
In sum, very profound and effective reform is urgently needed in this area,
in accordance with the writings, proposals and requirements of scholars, law
professors, political leaders, intellectuals and journalists. It can be said
without hesitation that less talk, less ink, and much more effective facts and
deeds on this very sensitive issue are badly needed in Mexico, a country
otherwise so beautiful, so colorful, so hospitable, and so friendly.

FNa1. Assistant Attorney General of Mexico; formerly, Director Juridico, Xerox
Mexicana, S.A. de C.V., Mexico, D.F.

FN1. Chapter I of the Mexican Federal Constitution is, in fact, the Mexican
bill of rights.

FN2. CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS [CONST.-POLITICAL
CONSTITUTION OF THE UNITED MEXICAN STATES], art. 17, at 45 (Cajica Edition
1992) (Mex.) (author's translation).

FN3. See CAMARA DE DIPUTADOS, XLVI LEGISLATURA DEL CONGRESO DEL UNION, 4
DERECHOS DEL PUEBLO MEXICANO, MEXICO A TRAVES DE SUS CONSTITUCIONES 74
(1967) (Mex.).

FN4. For a complete and accurate discussion of the right to enjoy a just order
through the jurisdiction under the Mexican Constitution, see JUVENTINO V.
CASTRO, GARANTIAS Y AMPARO 180-88 (4th ed. Porrua Edition 1983) (Mex.).

FN5. Nine political parties contended in the 1994 federal election to renew
both houses of Congress, to replace the individual holding the Federal
Executive Power and to renovate the Assembly of Representatives of the Federal
District: Partido Accion Nacional (P.A.N.), Partido Revolucionario
Institucional (P.R.I.), Partido de la Revolucion Democratica (P.R.D.), Partido
del Trabajo (P.T.), Partido Popular Socialista (P.P.S.), Partido Autentico de
la Revolucion Mexicana (P.A.R.M.), Partido del Frente Cardenista de
Reconstruccion Nacional (P.F.C.R.N.), Partido Verde Ecologista Mexicano
(P.V.E.M.), and Partido Democrata Mexicano (P.D.M.). According to the official
results of the August 21, 1994 election, only the P.A.N., the P.R.I. and the
P.R.D. received substantial percentages of the popular vote, i.e., 27%, 50% and
16%, respectively.

FN6. PARTIDO ACCION NACIONAL, SECRETARIA NACIONAL DE ESTUDIOS, PLATAFORMA
POLITICA 1994-2000 at 3-12 (1994) (author's translation).

FN7. Ernesto Zedillo, Seguridad y Justicia Para la Ciudadania in EXAMEN, UNA
PUBLICACION DARA LA DEMOCRACIA 18-19 (Comite Ejecutivo Nacional del P.R.I.
[P.R.I. National Executive Committee] Aug. 1994) (author's translation).

FN8. Interview with Dr. Raul Carranca y Rivas, Professor Emeritus at the
National Autonomous University of Mexico, in EL UNIVERSAL (Mexico City), Sept.
4, 1994, at 1, 24 (author's translation).

FN9. Id. (author's translation).

FN10. Interview with Dr. Jose Luis Soberanes, Director of the Instituto de
Investigaciones Juridicas of the National Autonomous University of Mexico, in
EL UNIVERSAL (Mexico City), Sept. 5, 1994, at 1, 26-27 (author's translation).

FN11. Id.

FN12. Id. (author's translation).

FN13. For a brief but accurate discussion of the integration, powers and role
of the federal Judicial Power in Mexico, see Claudia Leticia Ortega Medina,
Integracion, prerrogativas y competencia del Organo Judicial Federal, in 75
ANIVERSARIO DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS 367-91
(Porrua Edition 1992) (Mex.) [hereinafter Ortega Medina]. For a more detailed
discussion, see Felipe Tena Ramirez, DERECHO CONSTITUCIONAL MEXICANO 477-533
(20th ed. Porrua Edition 1984) (Mex.).

FN14. JORGE CARPIZO, EL PRESIDENCIALISMO MEXICANO 121, 190-99 (Siglo XXI
Edition 1978) (Mex.).

FN15. DANIEL COSIO VILLEGAS, EL SISTEMA POLITICO MEXICANO 30-31 (Joaquin Mortiz
Edition 1972) (Mex.) (author's translation).

FN16. Complete discussions about this subject, which focus on the independence
of the judiciary, may be found in Elisur Arteaga N., La Independencia de la
Rama Judicial, in DERECHO COMPARADO MEXICO ESTADOS UNIDOS 399 (James F. Smith
ed., 1990) (Mex.) [hereinafter Arteaga], and in Hector Fix Zamudio, La
Independencia Judicial en el Ordenamiento Mexicano, in DERECHO COMPARADO MEXICO
ESTADOS UNIDOS 379-92 (James F. Smith ed., 1990) (Mex.). See also Rafael
Estrada Samano, La Independencia de la Suprema Corte de Justicia de la Nacion,
5 ANADE 23-34 (1992) (Mex.) [hereinafter Estrada Samano].

FN17. Arteaga, supra note 16.

FN18. See supra note 8.

FN19. Interview with Justice Mariano Azuela Guitron, Justice of the Supreme
Court of Justice, in EL UNIVERSAL (Mexico City), Sept. 12, 1994, at 1, 24-25
(author's translation).

FN20. See Estrada Samano, supra note 16.

FN21. See RAMON SANCHEZ MEDAL, EL FRAUDE A LA CONSTITUCION (Porrua Edition
1988) (Mex.).

FN22. See Estrada Samano, supra note 16; RAMON SANCHEZ MEDAL, TEMAS JURIDICOS
DE ACTUALIDAD (1993) (Mex.); Efrain Gonzalez Morfin, Reformas y Adiciones a la
Constituticion Juridica, 10 ANUARIO DEL DEPARTAMENTO DE DERECHO DE LA
UNIVERSIDAD IBEROAMERICANA 153 (1978) (Mex.); MARIANO AZUELA GUITRON, EL
DERECHO A LA JURISDICCION Y LA MODERNIDAD EN LA ADMINISTRACION DE JUSTICIA,
ESTUDIOS JURIDICOS EN HOMENAJE A MANUEL HERRERA Y LASSO (1890-1990) 65-66
(1990) (Mex.).

FN23. Rafael Estrada Samano, Necesidad de Reinstaurar, dentro de la estructura
del Poder Ejecutivo Federal, la Secretaria de Justicia, 3 REVISTA DE
INVESTIGACIONES JURIDICAS 367-69 (1979) (Mex.).

FN24. Antonio Martinez Baez, La Institucion del Ministerio Publico y su
caracter de Representante Social: Una revaloracion, in LA PROCURACION DE
JUSTICIA, PROBLEMAS, RETOS Y PERSPECTIVAS 334 (Procuraduria General de la
Republica 1993) (Mex.) (author's translation).

FN25. Id. (author's translation).

FN26. Dr. Martinez Baez was, and still is, a respected member of this
organization.

FN27. Barra Mexicana & Colegio de Abogados, Por una Secretaria de Justicia, in
EL FORO (Mexico City) (1963).

FN28. Alfonso Noriega Cantu, El Juicio de Amparo, in Obra Juridica Mexicana, 2
PROCURADURIA GENERAL DE LA REPUBLICA 1562 (1985) (Mex.).

FN29. For a thorough and well documented study of the amparo in English, see
RICHARD D. BAKER, JUDICIAL REVIEW IN MEXICO, A STUDY OF THE "AMPARO" SUIT
(1971).

FN30. JUVENTINO V. CASTRO, HACIA EL AMPARO EVOLUCIONADO 42 (Porrua Edition
1971) (Mex.) (author's translation).

FN31. Id.

FN32. Id.

FN33. Id. at 44 (author's translation).

FN34. ANTONIO CARRILLO FLORES, LA CONSTITUCION, LA SUPREMA CORTE Y LOS DERECHOS
HUMANOS 32-33 (Porrua Edition 1981) (Mex.) (author's translation).

FN35. Hector Fix Zamudio, Los Tribunales Federales como Controladores de la
Constitucion, in TEMAS Y PROBLEMAS DE LA ADMINISTRACION DE JUSTICIA EN MEXICO
163 (Porrua Edition 1985) (Mex.) (author's translation).

FN36. See also Ortega Medina, supra note 13, at 386.

FN37. Editorial by Sergio Garcia Ramirez in EXCELSIOR (Mexico City), Aug. 4,
1994, at 1, 10, 15 [hereinafter Garcia Ramirez].

FN38. Or through the Department of Justice, should it be reinstated.

FN39. Garcia Ramirez, supra note 37, at 10.

FN40. Id. at 15.

FN41. North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., H.R.
Doc. No. 103-159 (effective Jan. 1, 1994).

FN42. Garcia Ramirez, supra note 37.