Mexico: Campaign promises and institutional legal reality
In the next few days, several public offices of popular election will be renewed in what constitutes an unprecedented democratic exercise in the history of Mexico. The candidates of all political parties have made countless proposals to convince the electorate to vote in favor of them and their respective projects.
Regardless of ideological and/or political inclination, we as Mexicans have the duty to listen to the proposals, analyze them and weigh them in order to exercise our right to vote in an informed manner.
But, how to identify the best proposals, how to distinguish between a campaign promise that is just a good wish and one that sticks to reality? In this regard, an analysis that I consider essential and that should not be missing, is to subject campaign proposals to legal scrutiny. In this way, it will be possible to determine whether they are compatible with the regulatory framework.
In relation to two campaign promises:
Andres Manuel Lopez Obrador (AMLO) mentioned that if he becomes president he will submit to the revocation of mandate every two years and that if the «people» decide so, he shall resign.
Article 83 of the Mexican Constitution states that the office of president can only be resigned for serious reasons to be qualified by the Congress of the Union. In the same manner, Article 73 of our Magna Carta establishes in its section XXVII as a power of the Congress to approve the resignation of the president. This means that «the people» – a concept that has no legal significance whatsoever – could not decide on a resignation. On the other hand, the president could not resign by the mere request of «the people», but only for «serious causes». This leaves a legal vacuum in this regard, which would complicate the political process to be followed for resignation. In conclusion, this proposal, as romantic and progressive as it may seem, would be legally difficult to implement.
Ricardo Anaya Cortés affirms that if he becomes president, he will send the current head of the Executive branch to jail. In this regard, Article 21 of the Constitution establishes that the prosecution of crimes shall be entrusted to the Public Prosecutor’s Office. On the other hand, Article 102 of the Constitution provides that the Federal Public Prosecutor’s Office will be organized in an autonomous constitutional body, with legal personality and its own assets, called the Office of the Attorney General of the Republic.
This means that the decision of whether or not to proceed criminally against a former president will not fall on the new president, but on an independent constitutional body that is not hierarchically subordinated to the executive branch. From a strictly legal perspective, the candidate who launched this proposal is promising something to the electorate that is not within his powers.
Another proposal of López Obrador that has caused a lot of commotion is the famous «amnesty» for criminals.
Legally there are two figures that regulate the pardon of criminals: one is the «amnesty» and the other is the «pardon».
According to Article 92 of the Federal Criminal Code (Código Penal Federal), amnesty is a general declaration that extinguishes the criminal action and excludes from all criminal liability those persons who have committed a certain crime in terms of the law that grants it, without including civil liability. Pursuant to Article 73 section XXII of the Constitution, the power to grant amnesty for federal crimes corresponds to the Congress of the Union.
On the other hand, a pardon is a pardon directed to a person definitively convicted of a crime, and it may be granted by the Executive according to Article 89 of the Constitution, although subject to certain conditions established in Articles 94 to 98 of the Federal Criminal Code (Código Penal Federal). For example, in order for the Executive to grant a pardon, it is required an opinion issued by the body executing the sanction that reflects that the conduct of the offender implies a high degree of social reinsertion and that his freedom does not represent a risk to public tranquility and security.
In addition, there are certain crimes for which a pardon may not be granted, such as treason or crimes against health, among others. From the foregoing, it is concluded that the President may grant pardons subject to certain conditions. However, a general amnesty will be the decision of a law approved by the Federal Congress. In both cases, these faculties are restricted to federal crimes.
Exercises such as the above, I believe, are essential for citizens to be able to fully exercise our democratic rights. We live in a state of law, in which the Constitution and the laws regulate the powers, attributions, duties and limits of all authorities and constitute the parameter through which public power is exercised. Therefore, it is very important that citizens know how to distinguish which proposals can be legally materialized from those campaign promises that may sound very good politically, but are incompatible with our legal order.
As legal professionals, we have a civic responsibility to offer analyses such as the one carried out here and to share the results with the citizens in what constitutes a free and responsible exercise of our democracy.