One Shot: History does not Reiterate, it Rhymes…
It feels like a lifetime has gone by in the span of two weeks. Today we are taking a small break from the discussion of the reform of the judiciary to touch on yet another Constitutional Reform: that of the National Guard. I now understand why Billie Joe Armstrong asked to be woken up at the end of September, because, thus far, things are looking like a nightmare.
Just yesterday (the 25th of September 2024) the Mexican Senate approved, with a supermajority of 86 votes in favor and 42 votes against, a constitutional reform which transfers the control of the National Guard to the Secretariat of defense (SEDENA). I will not make the mistake again of going too deep into it before the official text is published in the DOF; but I think that it is important to highlight two important points (at this rate I think I’ll need to hire people to help me write about this because it’s getting somewhat difficult to keep up :| ).
1) What was de facto is now de jure…
I think that it is important to take note that the progressive militarization of Mexican political life has a long history which does not begin with MORENA. Most analysts, from both the left and the right might I add, seem to place the origin of this process in the mid 2000 with former President Felipe Calderón’s strategy to combat organized crime: a strategy which left an obscene amount of people dead and a devastating number of enforced disappearances. Ever since, the so-called War against the Cartels (Guerra contra el Narcotrafico) has seen the death toll rising, year after year, even well into President Lopez Obrador’s mandate.
It seems that both the president and his party seem to have gotten historical amnesia: all throughout former President Calderón and former President Peña-Nieto’s terms he vociferously voiced opposition to a military-based strategy to combat organized crime. So much so that he presented the National Guard to remedy the ills of the past; a means of, supposedly, marking the beginning of a new era where bullets were replaced by hugs (“abrazos no balazos” as he used to say).
The idea, or perhaps more accurately the rhetoric, behind the very creation of the National Guard was to create a civil force, which would remedy the insistence on militarism of previous administrations. But reality had different plans.
According to the Centro de Investigación Económica y Presupuestaria, in December of 2020, the National Guard was composed individuals coming from very specific areas of security forces (with a key requirement of forming a part of this body being that you left your prior institutional affiliation): concretely, the national guard was composed of 24,174 Federal Police officers; 16,513 SEMAR (Naval) officers and 59,548 SEDENA (military) officers.[1]
So, it was a nominally civil body, composed primarily of people that had military training.
Ok.
And don’t get me wrong, I am not living in a fantasy world where I think it would be better for the National Guard to be composed of Police Officers: I think the corruption in that body has been documented more than enough.
But what is important to bear in mind is the underlying training which both of these receive/the underlying logic they obey: one, police training, is designed to build capacity to service peace time security needs; whereas the other, requires training for conflict situations (military training). The lifeblood of the national guard, the people, already had this preexisting military training which, just functionally, means that it was a civil body with a military orientation.
The current reform concretizes and constitutionalizes; but it was already the case that National Guard was militaristic.
But this also asks a very important question: if AMLO and his project were so certain that militarization was leaving a trail of bodies in its wake, why would we continue and perfect the strategy of his corrupt predecessors? The only thing that makes sense to me is that they did not necessarily have an issue with the strategy, just an issue with who helms that strategy. And now that we have a female Commander in Chief (comandanta), MORENA can pat itself on the back and be content that they militarized the country from an intersectional perspective.
Oh, and while we are at it. One of the main defenses used to dispel the prospect of the militarization of Mexico by the hegemonic party is that the National Guard will be helmed by an ordinary citizen (“una civil” they say). Um. Then are all the bodies of the SEDENA not militaristic because the commander in chief is not from the military? Do we have to get to the point of Pinochet, Franco or Videla for it to magically transform from a civil armed force to a military one? Or is it just that those were bad just because they were right wing, and the virtuous transformation movement would never fall into that trap?
History may not repeat itself, but I believe it rhymes.
I digress…
And, just to close this brief aside I think it’s important to look at the reality of Mexico. A mentor of mine, Prof. Oscar Martínez, once told me that politics is not what exists in rhetoric, but what you see with your eyes. If any of you have had the chance to go to Mexico City in the past six years, you will have noticed that there were a lot of naval officers; you may have had a second security check when trying to get on your plane; or you may have noticed the big trucks outside the airport bearing weapons used for war.
Slowly but surely, these military elements, or elements that obey a military logic and have a military training, have permeated public life; this, to the point that maybe we don’t even notice it.
Perhaps that’s one of the benefits of being far away from home, when you return, and things are different something just doesn’t sit right. But anyways, we’ll leave it at that for now.
2) Military jurisdiction: No. Just. No.
The last brief point I want to touch on is that of the reform of two articles which have, ostensibly, been reformed by yesterday’s vote: article 13 and 21 of the Mexican Constitution.
According to the proposal, the reform seeks to amend Article 13 of the constitution so that cases relating to the National Guard are handled in a Military Jurisdiction. In addition, the proposed reform of Article 21 foresees that the investigation of crimes that fall under military jurisdiction will also correspond to the National Guard within the scope of its competence.[2]
A lot to unpack here:
First: At least from what I know about the reform there is no intention to make judges in the military jurisdiction elected by popular vote. If the point of the supposed “democratization” of the judicial system was to ensure transparency and integrity, as well as to extricate corruption from the judicial strata, do military judges not have to be transparent? Do they not have to have integrity? Is it ok if they are corrupt? Having moved the National Guard to the Secretariat of Defense, this supposedly civil armed force is now well endowed with the state’s monopoly of the use of force. Would it not then be logical to apply the same mechanism that, supposedly, would make the corrupt judicial strata answer to the people? I’m just using the logic presented in the reform of the judiciary.
Second: if any and all criminal cases against a member of the National Guard are to be handled in military jurisdiction (Fuero Militar) and, on top of that, the National Guard itself will have competence to handle the investigation of these crimes, then we have a very, very, very serious issue.
On this front the Inter-American Court of Human Rights was clear in the case of La Cantuta vs Peru, where it noted that “in a democratic State, the jurisdiction of military criminal courts must be restrictive and exceptional, and they must only judge military men for the commission of crimes or offences that due to their nature may affect any interest of military nature.” Further, the Court held that “when the military courts assume jurisdiction over a matter that should be heard by the ordinary courts, the right to the appropriate judge is violated, as is, a fortiori, due process, which, in turn, is intimately linked to the right of access to justice.”[3]
In the case of Radilla Pacheco vs Mexico (ironic huh) the Court noted that “taking into account the nature of the crime and the juridical right damaged, the military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the authors of human rights violations; rather, the processing of those responsible always corresponds to the ordinary [non-military] forum”.[4]
Further, in the case of Ortíz Hernandez et al vs. Venezuela the Court emphasized that “The fact that the subjects involved belong to the armed forces or that the events occurred during a military exercise [or even] in a military establishment does not mean per se that the military justice system must intervene.”[5] Military jurisdiction is only to be used in cases where specific military interests are at play: human rights violations do not fit that bill.
The irony continues, since it was in another case against Mexico, Rosendo Cantú et al. vs Mexico where the motives for this prohibition can be seen. Indeed, that case involved the rape and torture of Valentina Rosendo Cantú by members of the members of the Mexican military. The state attempted to use the very real problem of organized crime in the state of Guerrero to pull off a legal sleight of hand: the logic being, if there was a military operation under way which was aimed at combating a security threat, any actions taken during that operation fall under the military jurisdiction – military personnel, military operation, military jurisdiction.
There the Court noted that “The rape of a person by military personnel bears no relation, in any case, to military discipline or mission. On the contrary, the offense committed by military personnel against Mrs. Rosendo Cantú affected juridical rights protected by domestic law and by the American Convention, such as the victim’s right to personal integrity and privacy. It is evident that such conduct is openly contrary to the obligations to respect and protect human rights and, consequently, is outside the competence of the military jurisdiction. Based on the foregoing, the Court concludes that the intervention of the military justice system in the preliminary investigation of the rape was contrary to the parameters regarding the exceptional and restrictive nature of that system and involved the application of military jurisdiction which acted without taking into account the nature of the acts involved. This conclusion is valid in the present case, even though the incident is only at the investigation stage in the Military Prosecutor’s Office. As stated previously, the incompatibility of the American Convention with the intervention of the military justice system in this type of case does not apply solely to the act of prosecution, which is the responsibility of a court, but fundamentally to the investigation itself, given that this process constitutes the beginning and the necessary grounds for the subsequent intervention of an incompetent court.”[6]
In sum: the use of the military forum is to be restricted and circumspect to those cases where military interests are at play - an obligation which applies both to the actual prosecution of crimes and their investigation. To the extent that the reform unnecessarily facilitates the use of this jurisdiction Mexico will be violating its international obligations.
In closing
To take a phrase from US Presidential candidate Kamala Harris, we exist in a context; this reform did not pop off a coconut tree.
And, indeed, I believe that now we are starting to see that the reform of the judiciary was just the first step: and an intelligent one at that. If you want to win a competition, yeah, you can break the other persons’ legs (the military coup strategy), or you can change the rules (the abusive constitutionalism seen in previous decades).[7] But perhaps the smartest way to go about winning is capturing the referee, which in our democratic game are Judges. If the ref chooses to look away, there is no way you don’t win.
Last week we had two reforms approved by the two chambers of the Legislature: The Constitutional reform on Indigenous and Afro-Mexican communities :D; and this reform of the National Guard :(
It’s a very intelligent sleight of hand: passing a reform which is an important step in the protection of vulnerable communities, the very important achievement of having a female president in a country as machista as Mexico, integrating inclusive language into the Constitution; all the while eroding the separation of powers system and the independence of the judiciary, giving an incredible amount of power to the military, and slowly but surely taking away checks and balances on power under the pretense that it’s what the majority wants.
Still on the docket is the reform which pretends to eliminate autonomous constitutional organs: like the competition and consumer protection bodies.
Let’s see what happens next…
[1] https://ciep.mx/guardia-nacional-origen-composicion-y-presupuesto/
[2] https://animalpolitico.com/politica/reforma-guardia-nacional-fuero-militar-investigacion; https://aquinoticias.mx/reforma-gn-fuero-militar-lo-que-preocupa/; https://el-mexicano.com.mx/Noticia/Nacional/71096/GUARDIA-NACIONAL-PASA-A-LA-SEDENA
[3] La Cantuta Vs. Perú Serie C No. 162, § 142; In a similar sense see Caso Cruz Sánchez y otros Vs. Perú Serie C No. 292, § 398, 399, Caso Comunidad Campesina de Santa Bárbara Vs. Perú Serie C No. 299, § 245, Caso Osorio Rivera y familiares Vs. Perú Serie C No. 274, § 188, Caso Masacre de Santo Domingo Vs. Colombia Serie C No. 259, § 158, Caso La Cantuta Vs. Perú Serie C No. 162, § 142;, Caso Tiu Tojín Vs. Guatemala Serie C No. 190, § 119, Caso Coc Max y otros (Masacre de Xamán) Vs. Guatemala Serie C No. 356, § 84, Caso Ortiz Hernández y otros Vs. Venezuela Serie C No. 338, § 148, Caso Tenorio Roca y otros Vs. Perú Serie C No. 314, § 194, Caso Zambrano Vélez y otros Vs. Ecuador Serie C No. 166, § 66, Caso de la Masacre de La Rochela Vs. Colombia Serie C No. 163, § 200, Caso Quispialaya Vilcapoma Vs. Perú Serie C No. 308, § 145, Caso Vélez Restrepo y familiares Vs. Colombia Serie C No. 248, § 240, Caso Escué Zapata Vs. Colombia Serie C No. 165, § 105.
[4] Caso Radilla Pacheco Vs. México Serie C No. 209, § 273, 274
[5] Own translation. In the original “El hecho que los sujetos involucrados pertenezcan a las fuerzas armadas o que los sucesos hayan ocurrido durante una práctica militar en un establecimiento militar no significa per se que deba intervenir la justicia castrense.” Caso Ortiz Hernández y otros Vs. Venezuela Serie C No. 338, § 149
[6] Caso Rosendo Cantú y otra Vs. México Serie C No. 216, § 161
[7] David Landau, Abusive Constitutionalism, 47 U.C. DAVIS L. REV. 189 (2013), Available at: https://ir.law.fsu.edu/articles/555
