2. Legislative Enactments
Mexican legal research differs drastically from U.S. research. In Mexico legal research is principally directed not at finding case law or analyzing the value of precedents (as it seems to be the rule in our country), but at determining the precise legal provision that is found in a given Mexican legislative enactment--whether a statute, a regulation or a code at a federal or state level - that applies to the legal issue in question or governs the case at bar.
In most cases, Mexican researchers do not search for case law. The reason is quite simple: since Mexico does not adhere to the Principle of stare decisis,10 the significance of case law in that country is secondary compared to the importance given to the legal principle, rule or norm found in the applicable provision of a given statute or code. Thus in Mexico - unlike the United States - rather than focusing on case law and the legal value of precedents, Mexican legal research focuses on identifying the specific provision in a statute or in a code that applies and controls the contested issue or governs the case at bar.
Whereas it is reasonable to speak of the common law as the law of the judges, according to Prof. John H. Merryman: "no one would think of using such terms in speaking of the civil law." He writes:
- Legislative positivism, the dogma of the separation of powers, the ideology of codification, the attitude toward the interpretation of statutes, the peculiar emphasis on certainty, the denial of inherent equitable power in the judge, and the rejection of the doctrine of stare decisis -all these tend to diminish the judge and to glorify the legislator.
.....Although it is now admitted that civil law courts have an interpretive function, the fiction is still maintained that in performing that function the judge does not create law, but merely seeks and follows the express or implied intent of the legislator.11
However, Mexico's sound legal research principles dictate that it is always recommended to ascertain the tenor of the latest interpretation given to that specific legal provision by, a Federal Collegiate Circuit Court (Tribunal Colegiado de Circuito) or by the Supreme Court of Justice of the Nation (Suprema Corte de Justicia de la Nación) in their most recent Ejecutoria or Jurisprudencia.12
Although Mexico's legal system does not strictly adhere to the dictates of stare decisis, it should be evident by now that when a Jurisprudencia is finally reached (and reaching this fifth decision may take not one but many years depending upon the subject), this immediately establishes an obligatory judicial precedent to be followed not only by all of the federal and state lower courts but also by Mexican authorities. Therefore, Jurisprudencia constitutes the only case under Mexican law where Mexican courts must abide by a given precedent and proceed to formulate their judicial decisions accordingly.
The decisions of the Supreme Court of Mexico and those of the Federal Collegiate Circuit Courts are published in the Semanario Judicial de la Federación (Judicial Weekly of the Federation). As noted earlier, the text of Jurisprudencias and other federal court decisions are available at the official portal of the Supreme Court of Justice and at the site of UNAM's Legal Research Institute.
The bulk of business, investments and trade conducted in Mexico by foreign investors and U.S. companies (or by any other foreign legal entities), is governed by federal statutes (Leyes Federales), regulations (Reglamentos), and by federal codes (Códigos federales).
For example: the visa required to enter Mexico for business purposes, any type of foreign investment, the establishment of a Mexican company, company administrative and commercial activities, labor contracts and working conditions, environmental matters, the handling and disposal of toxic waste and hazardous materials, environmental impact statements, industrial property, technology transfers, civil aviation, radio and television, cellular phones and telecommunications, import-export activities, customs issues, Maquiladoras, transportation and communications, ports and marina activities, commercial and sport fishing, acquisition of real estate and Fideicomisos, government procurement, taxation, are controlled by federal statutes (Leyes Federales).
Accordingly, for practical and business reasons it is essential for any foreign investor, or for a legal practitioner with clients doing business in that country, or for law students interested in Mexican law, to be familiar with and to know where to find and how to access each of the federal statutes (and their corresponding regulations) which control and regulate the conduct of business and commercial activities by foreign investors and U.S. companies in Mexico.
2.1 No Mexican Federal Statutes in English
It should also be evident that, although the overall activities of foreign investors and foreign companies in the Republic of Mexico are controlled by specific federal statutes, the local day-to-day activities of a given U.S. company, factory, Maquiladora, are governed by municipal and state laws and regulations, depending upon their physical location.13 Some of these state laws and regulations may be available in the respective web site of the State in question.14
Currently, there are no Internet sites that provide English translations of the totality of the Mexican federal statutes that control and regulate the commercial activities of foreign investors in Mexico. There are, however, a number of web sites that make available the text in English of one or more Mexican statutes.
In the alternative, there are commercial companies that sell English translations of solicited statutes (and their regulations) for a fee, or as a service to paying subscribers. The listing of these commercial companies is outside the scope of this Note.
In the absence of comprehensive Internet sites with English texts of Mexican federal statutes and regulations, possibly the best single source of these legal materials is the bilingual (English/Spanish) collection of Mexican federal statutes published in the series titled: MEXICAN LAW LIBRARY: COMMERCIAL CODES:
Vol. 1: Business and Commercial (Seven statutes): (1) Commercial Companies Act; (2) Foreign Investment Act; (3) Foreign Investment Regulations; (4) Economic Competition Act; (5) Federal Labor Act; (6) Industrial Property Act; and (7) Bankruptcy Act, already repealed;
Vol. 2: Tax (Three statutes): (1) Income Tax Act; (2) Value Added Tax Act; and (3) Asset Tax Act;
Vol. 3: Financial Services (Five statutes): (1) Credit Institutions Act; (2) Negotiable Instruments Act; (3) Securities Market Act; (4) Act regulating Financial Groups; and (5) Insurance Institutions and Mutual Insurance Companies Act;
Vol. 4: Foreign Trade (Six statutes): (1) Customs Act; (2) Maquiladora Decree; (3) Car Industry Decree; (4) Oil Act; (5) Natural Gas Regulations; and (6) Federal Telecommunications Act;
Vol. 5: Environment and Natural Resources (Seven statutes): (1) Environmental Act; (2) Hazardous Wastes Regulations; (3) Atmospheric Pollution Regulations; (4) Environmental Impact Regulations; (5) National Waters Act; and (7) National Waters Regulations.15
However, the text of these materials is now outdated considering that the statutes and regulations included in this series have been amended after publication in this series in 1997-1998.
2.2 Mexican Federal Statutes in Spanish
The volume of information on Mexican law in Spanish available on the Internet is plentiful. In particular, the official electronic portal titled: Legislación Federal de México (Mexico's Federal Legislation), provides the most complete and current text of 229 federal statutes and the most important federal codes, as well as local enactments that only apply to the Federal District (Mexico City). All of the federal statutes included in this site govern the commercial activities of foreign investors and foreign companies in Mexico.
This website is sponsored by the Chamber of Deputies of Mexico's Federal Congress (Cámara de Diputados del Hon. Congreso de la Unión). Legislación Federal de México (Mexico's Federal Legislation). The texts are in Adobe Acrobat Reader format.
This site contains the complete text of Mexico's Federal Constitution of 1917, as amended, as well as the texts of the following federal codes: (1) the Federal Civil Code; (2) the Code of Commerce; (3) the Federal Code of Civil Procedure; (4) the Federal Code of Criminal Procedure; (5) the Federal Criminal Code; (6) the Code of Military Justice; (7) the Federal Code of Electoral Institutions and Procedures; (8) the Fiscal Code of the Federation.
All the texts are current, updated and in force. The complete list of these federal statutes, regulations and codes (and an informal English translation of their titles) appears in Appendix I of this Note.
From the U.S. business perspective, the most important federal statutes in this site include:
(1) Act Against Organized Delinquency; (2) Airports Acts; (3) Civil Aviation Act; (4) Consumer Protection Act; (5) Copyright Act; (6) Credit Instruments Act; (7) Customs Act; (8) Environmental Protection Act; (9) Expropriation Act; (10) Federal Labor Act; (11) Firearms and Explosives Act; (12) Gambling and Lottery Act; (13) Fishing Act; (14) Foreign Investment Act; (15) Foreign Trade Act; (16) General Means of Communications Act; (17) Immigration Act; (18) Industrial Property Act; (19) Insurance Contracts Act; (20) International Extradition Act; (21) Investments Companies Act; (22) Mercantile Bankruptcy Act; (23) Mercantile Companies Act; (24) Mining Act; (25) Navigation and Maritime Commerce; (26) Nuclear Energy Regulatory Act; (27) Oil Regulatory Act; (28) Ports Act; (29) Radio and Television Act; (30) Stock Market Act; (31) Telecommunications Act; and (32) Tourism Act.
2.3 Mexico's Major Codes in Spanish
The same website: www.cddhcu.gob.mx/leyinfo, also reproduces the texts of these eight federal codes: (1) the Federal Civil Code; (2) the Code of Commerce; (3) the Federal Code of Civil Procedure; (4) the Federal Code of Criminal Procedure; (5) the Federal Criminal Code; (6) the Code of Military Justice; (7) the Federal Code of Electoral Institutions and Procedures; (8) the Fiscal Code of the Federation. All the texts are current, updated, and in force.
Mexico is a civil law country. Accordingly, codes in Mexico play a primary role in defining the relative legal rights and obligations of parties. As legislative enactments, codes are unitary works that integrate all norms in a given branch of Mexican law in a systematic, comprehensive, organized and logical manner.
Mexico has distinct codes to regulate: (1) civil matters, (2) civil procedure, (3) penal matters, (4) criminal procedure, (5) commerce, and (6) tax matters, at the federal and state levels. Pursuant to Mexico's Federal Constitution of 1917, its government is structured according to a federal system (Art. 40, Fed. Const.). Thus, the federal government and each of the thirty-one Mexican states (Art. 43, Fed. Const.) maintain separate sets of codes. For the most part, state codes closely parallel the format and the language of the federal codes.
a) Federal Civil Code (Código Civil Federal)
Originally enacted in 1928 as the local code for the Federal District on ordinary matters and for the entire Republic of Mexico on federal matters (D.O. of March 26, 1928), a special Federal Civil Code was recently enacted by the Federal Congress (D.O. of May 29, 2000), as amended.16
From a substantive viewpoint, the text of the Civil Code for the Federal District is virtually the same (except for minor changes), as that of the Federal Civil Code. In essence, the Federal Civil Code constitutes the core of Mexican Civil Law and occupies a most salient place within Mexico's legal system. Furthermore, the thirty-one local Civil Codes of the Mexican States, which compose the Republic of Mexico, are a virtual copy (with insignificant changes) of the Federal Civil Code. Accordingly, this means that, de facto, regarding civil law matters the Federal Civil Code governs throughout the entire country.17
The Federal Civil Code is composed of 3,074 Sections (Articles) divided into four sections (Books), and preceded by some preliminary provisions. Book One (Persons) refers to the rights and obligations of individuals and legal entities including: questions relative to their domicile, civil registry, marriage, divorce, adoption, relationship and support, parental authority, guardianship, emancipation, absent and missing persons, and the homestead. This new code substantially modernized most of its family law provisions. Book Two (Property) governs real property and personal property, possession, ownership, usufruct, easements and prescription. Book Three (Successions) deals with successions by will, legal and testamentary successions, executors and partition questions. Book Four (Obligations or Contracts) pertains to: contracts, special obligations and their effects, leases, agency, professional services, associations and companies, mortgages, credits and public registry.
Under Mexican law, it is important to identify the number of Article(s) that explicitly refer to the specific topic or legal issue. For example, Article 14 of the Federal Civil Code refers to the application of foreign law in Mexico; the content of a marriage certificate is given in Article 103; the community marriage legal regime (Sociedad conyugal)18 is described in Articles 183-206, as opposed to the separation of property regime (Separación de bienes), which is regulated by Articles 207-218; the twenty grounds for divorce are listed in Article 267; and the principles that govern personal injury cases19 are enunciated in Articles 1910-1934 of the same Federal Civil Code.
b) Code of Commerce (Código de Comercio)
The provisions of the Code of Commerce apply exclusively to acts of commerce, and to the activities of merchants. This code composed of 1,462 Sections (Articles), was originally enacted in 1889, and has been amended several times.
Book One (Merchants) governs merchant activities. Book Two (Overland Commerce) regulates acts of commerce and mercantile contracts, commercial transactions, commercial companies, agents, factors and employees, mercantile bailments and loans, purchase and sale transactions. Book Three (Repealed, now substituted by a federal statute on maritime commerce). Book Four (Repealed, and substituted by the recent federal Bankruptcy Act). Book Five (Mercantile Actions) refers to mercantile judicial proceedings, pre-trial and trial procedures, general rules of evidence, judgments, appeals, and commercial arbitration and its procedure.
c) Federal Code of Civil Procedure (Código Federal de Procedimientos Civiles)
This Code is the exact counterpart to the Federal Rules of Civil Procedure, first adopted in our country in 1938 and then used as a model for similar state codes. Mexico's code was enacted in 1943, and then substantially amended in 1988 to allow for the application of foreign law by Mexican courts and to establish clearer rules in the area of international procedural cooperation.
It is interesting to point out that Mexican judges should apply foreign law in the same manner the law would be applied by the respective foreign judge; that the non-existence, absence or lack of Mexican legal institutions, or precise procedural rules, are not to hinder the application of foreign law provided there are "analogous" institutions or procedures under Mexican law; and that different phases of a given judicial proceedings may be governed by "different laws," whether foreign or Mexican, when applied harmoniously with the aim of achieving the intended purposes of the different applicable laws.20
The Federal Code of Civil Procedure consists of 577 Sections (Articles) divided into four parts. Book One (Parties) regulates the parties who may intervene in a federal civil trial, the judicial authorities, the rules of evidence, judicial resolutions and judicial formalities. Book Two (Litigious Matters) regulates the trial phases, including the initial complaint, the answer, evidence, the final judgment and incidents, as well as precautionary measures and enforcement. Book Three (Special Procedures) details liquidation proceedings, demarcations and boundaries, and expropriations, closing with voluntary jurisdiction. Book Four (International Procedural Cooperation) includes some basic principles, letters rogatory, jurisdiction over procedural issues, evidence, jurisdiction over judgments, and enforcement of judgments.
Book Four (Arts. 543-577) is particularly important; its provisions, jointly with those of other applicable federal statutes as well as treaties and international conventions to which Mexico is a party, govern cases involving international civil litigation. The Code was recently amended (D.O. of May 29, 2000).
d) Federal Code of Criminal Procedure (Código Federal de Procedimientos Penales)
The constitutional guarantees (Garantías individuales) enunciated by Mexico's Federal Constitution in the criminal law area (i.e., Arts. 14, 16, and 18-23. Fed. Const.), are enunciated, protected and detailed in the Federal Code of Criminal Procedure enacted in 1934 and amended several times (D.O. of February 6, 2002).
This Code consists of 576 Sections (Articles) divided into these Titles: Title One (General Rules) establishes the rules which govern the criminal procedure: jurisdiction, search and seizure warrants, summons, judicial resolutions, etc. Title Two (Initial Investigation) covers all aspects pertaining to pre-trial proceedings. Title Three (Causes of Action). Titles Four and Five (Pre-Trial Initial Investigation and Trial Initiation) pertains to evidence to prove the criminal offense and the probable responsibility of the alleged offender. Title Six is devoted to evidence and Title Seven to conclusions. Title Eight cover acquittals and Title Nine the criminal trial and irrevocable judgments. Title Ten refers to appeals, and Title Eleven to the incidents to free the alleged offender. Title Twelve refers to mental cases, minors and drug addicts, and Title Thirteen to the implementation of the final judgment, reduction and lessening of sanctions, pardons, amnesty and rehabilitation.
Interestingly, this code regulates the procedure to be followed in cases taking place before a popular jury (Jurado Popular), which is a rather atypical and unusual procedure since Mexico, unlike the United States, has no jury trials. An overwhelming majority of criminal cases in Mexico are resolved by a judge (Juez de Primera Instancia) sitting as both trier of fact and of law. This includes trials at both the state and federal level.
e) Federal Criminal Code (Código Penal Federal)
Mexico's Federal Criminal Code is applicable throughout the Republic of Mexico to criminal offenses of a federal nature. Enacted in 1931, this code has been amended numerous times, in particular since 2000 (D.O. of January 4 and June 12, 2000; June 1, 2001; and February 6, 2002).
The Code is formed by 429 Sections (Articles) divided into twenty-six titles, ranging from penitentiary rules, sanctions, enforcement of judgments to professional responsibility, termination of criminal responsibility, detailed enunciation of the federal crimes, etc.
Unlike the United States where criminal offenses are divided into "felonies and misdemeanors," depending upon their seriousness, in Mexico criminal offenses are categorized under the social value protected by the law. Therefore, the Federal Criminal Code enunciates in detail only federal crimes (Delitos federales) which are, in turn, classified under numerous categories of "crimes against" a protected legal value under Mexican law (Delitos federales en contra de...). These categories range from crimes against the nation's safety, international law and public security, to crimes against the person's property and patrimony, electoral crimes, crimes against the environment, and copyright violations.
The following list of examples may give a better idea of the specific "federal crimes" under each of these categories: the Nation's safety (treason, espionage, rebellion, sabotage); international law (piracy, immunity and neutrality violations, war crimes, genocide); public security (prisoners' evasions, police evasion, prohibited weapons, organized crime); general means of communication (unlawful obstacles to highways, unlawful acts against airports, mail violations); public authorities (disobedience, resistance to authorities, acts against public officers, violations to Mexico's national symbols); health (production, possession, trafficking, inducement and other drug-related acts, sexually-transmitted diseases); public morality and good customs (obscene and pornographic acts, corruption and prostitution of minors, sexual exploitation); secrets and unlawful access to systems and information equipments; public servants (official impersonation, abuse of authority, bribery, public theft, unlawful enrichment); the administration of justice; professional responsibility; falsehood and forgery (destruction of currency and bills, bill forgery, forging of documents); the public economy (consumer crimes, criminal offenses against national assets); sexual freedom (sexual harassment, adultery); civil status and bigamy, burials and exhumations, the peace and safety of persons (unlawful home intrusions); life and physical integrity (injuries, battery, homicide, infanticide, abortion, abandonment of persons, family violence); honor (injurious insults, defamation); unlawful deprivation of freedom (unlawful detentions, kidnapping); persons' property or patrimony (grand theft, unlawful disposition of movable assets, fraud, extortion, unlawful use of movable and real estate or waters, property damages,); electoral crimes; against the environment (technological and dangerous activities, biodiversity, biosecurity, unlawful transportation of hazardous wastes and materials); and copyright violations.
Each Article in this code enunciates or defines in detail the corresponding criminal offense, its modalities, its essential component, and the corresponding sanction. Recently, this code has been amended to include relatively novel federal crimes such as sexual harassment, family violence, corruption and prostitution of minors, crimes against the professional malpractice of attorneys and medical doctors, electoral crimes, and certain acts against the environment. Moreover, in recent years the Government of Mexico has enacted federal statutes formulated to punish certain criminal activities; in this regard, the Act against Organized Delinquency (D.O. of October 28, 1996) deserves mention.
f) Fiscal Code of the Federation (Código Fiscal de la Federación)
This important Code regulates the payment of taxes in Mexico by both individuals and companies, including certain foreign nationals, as mandated by the Federal Constitution (Art. 31, para. IV), and other federal statutes. The Code was published in the D.O. of December 31, 1981 (last amendment in D.O. of December 31, 2000). This Code provides definitions of the legal tax terms, such as types of taxes, residents of the Mexican territory, fiscal domicile, impounding of assets, business activities, financial transactions, business markets, etc., all of them indispensable for tax purposes to foreign investors, foreign business persons, and foreign legal entities which transact business in or with Mexico.
This Code is composed of 263 Sections (Articles) that range from rights and obligations of tax payers, power of tax authorities, violations and fiscal crimes to administrative appeals, challenging of fiscal summons, and the procedure for impounding assets. It also governs the procedure to be followed in suits before the Federal Tribunal of Fiscal and Administrative Justice (Tribunal Federal de Justicia Fiscal y Administrativa), which is Mexico's highest tax court.
2.4 Mexico's Diario Oficial de la Federación (D.O.)
www.segob.gob.mx - This is the official web site for the Diario Oficial.
This official gazette may also be reached through: www.precisa.gob.mx, which is the general web site providing access to the Secretariats of State (Secretarías de Estado), administrative departments and other federal agencies compose Mexico's Federal Public Administration.
Mexico's Secretariat of the Interior (Secretaría de Gobernación or Segob) is the most politically active and the most administratively powerful entity of Mexico's Presidential cabinet. Under the PRI's dominance, the Secretary of the Interior was the natural candidate to succeed the President of the Republic at the end of his six-year term. Segob's possible counterparts in the United States would be formed by the combined powers of: the Department of Homeland Security (DHS), the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA).
Segob is empowered to exercise control over national security, domestic political activities at the national and state levels, internal and international migration, legislative bills signed by the Federal Executive, religious affairs, admission and expulsion of foreigners, freedom of the press, radio and television, etc. In addition, Segob is empowered "to publish the statutes and decrees enacted by the Congress of the Union, either of its two Chambers, [of Deputies and of Senators] or by the President of the Republic." This is done by administering, organizing and publishing the Official Gazette of the Federation (Diario Oficial de la Federación) generally recognized by its acronyms: D.O. or D.O.F.), which may be compared to the FEDERAL REGISTER in the United States.
The D.O.'s official web site gives access to the best Mexican law information since the legislative texts in this site are officially provided by the Government of Mexico; taken verbatim from Mexico's Diario Oficial. Pursuant to the Federal Civil Code, for any statute, regulation, etc., or any other enactment of general observance, to be legally binding throughout the Republic of Mexico they must appear in print and be published in the D.O. The texts of these federal statutes, codes, regulations, international treaties and conventions as approved by the Mexican Senate, etc., which are available on this web site are official and authoritative.
Any federal legislative enactment may be found in the Diario Oficial with the date of their respective publication. Accordingly, in Mexico it is customary to give the title of each legislative enactment followed by the date of its publication in the D.O. At the end of each legislative enactment, both at the federal and state level, in the section titled: Artículos Transitorios (Transitory Articles or transient provisions), the reader will find the specific date of the entering into force of the enactment in question.
As described above, most of the business and commercial activities conducted by foreign investors and foreign companies in Mexico are governed by federal statutes and corresponding regulations. It should be added now that the monitoring and enforcement of these statutes and regulations corresponds exclusively to the Federal Executive Power through its federal agencies (Secretarías de Estado or Secretariats of State), and administrative departments.
These federal agencies and departments constitute Mexico's centralized public administration, whose jurisdiction, administrative powers, duties and responsibilities are enunciated in the Federal Public Administration Act (D.O. of December 29, 1976, as amended). Mexico's presidential cabinet is formed of eighteen Secretariats (federal departments or agencies), and the Office of the Legal Counsel to the Federal Executive.23
2.5 The Federal Constitution of 1917
The complete and current text in Spanish of Mexico's Federal Constitution is available on this web site: Legislación Federal de México: www.cddhcu.gob.mx/leyinfo
Mexico's current Federal Constitution resulted from the popular and violent revolution initiated in 1910, which led to the emergence of contemporary Mexico. From a substantive viewpoint, the fundamental law of Mexico was inspired by the content and structure of the U.S. Constitution.
This influence is eminently clear in two parts of Mexico's fundamental law: first, in the initial part, which enunciates the constitutional rights, as the Individual Guarantees or Garantías individuales. Second, in the organic part establishing a form of government divided into three major branches: the Executive (Ejecutivo, Articles 80-93), the Legislative (Legislativo, Arts. 50-70, Fed. Const.), and the Judicial (Judicial, Arts. 94-107, Fed. Const.) which closely parallels the U.S. political system.
However, the format and length of Mexico's Constitution emulates the European models (in particular those of Spain and France). Its text is composed of 136 Articles (or sections) divided into two major parts: (1) the dogmatic part formed by the express enunciation of the constitutional rights that limit the power of the State vis à vis individuals or groups (Arts. 1-29, Fed. Const.); and (2) the organic part which refers to the structure of the public powers and their respective jurisdictions (Arts. 49-107 and 108-114, Fed. Const.).
Unlike the U.S. Constitution, the fundamental law of Mexico may be characterized as programmatic and aspirational. It is programmatic because the body of the Constitution has been traditionally used as a political platform by the President to in turn publicize his personal presidential program and to reflect the public policies he is politically bound to implement during his six-year term. It is also aspirational because a number of its provisions do not reflect Mexico's current reality. Rather, these provisions advance certain objectives or goals that the Mexican people, with their unity, industry and collective effort, aspire to accomplish or materialize in the near future.
The Federal Constitution occupies the apex of Mexico's legal pyramid. It has been amended some 450 times since it was enacted eighty five years ago (D.O. of February 5, 1917). In recent years, the idea that Mexico should have a more modern and new Constitution has attracted special attention in political, legal, academic and business circles.
From a legal perspective - independently of its political and historic importance--the Constitution of Mexico may be of practical interest to foreign investors, foreign companies and foreign legal practitioners for two reasons: first, many constitutional provisions directly affect the presence of U.S. nationals in that country and the conduct of business and commercial operations by U.S. and other foreign companies within the territory of the Republic of Mexico.
For example: Article 1 provides - unlike the United States - that in Mexico the constitutional rights are enjoyed "by any individual," whether a Mexican national or a foreigner. Articles 14 and 16 guarantee due process in judicial proceedings and the right of any person not to be unduly molested in his/her family, home, documents or possessions, except by judicial order of a competent authority. When these constitutional rights are violated, Articles 103 and 107 of the Federal Constitution guarantee the right to be protected via "Amparo." Article 73 enumerates the exclusive powers of Congress to impose taxes and legislate in a number of federal areas, all of them affecting the commercial activities of foreign investors in that country. Article 33 prescribes that federal agents have the exclusive power "to make abandon the national territory, immediately and without any trial, any foreigner whose presence is deemed inconvenient."
The second reason is that numerous provisions of Mexico's Constitution have served as the legal basis for enacting more detailed federal legislation on a particular subject. These are known as "Leyes Reglamentarias." This is the case, for example, of Article 27, which establishes the legal regimes applicable to public and private property, and to the utilization of mineral and natural resources, in particular oil. Article 123, which generated the Federal Labor Act and governs all labor relationships in Mexico, including collective contracts, unions, workers' compensation, labor courts, and labor procedure.
a) Mexico: A Federal Republic
Originally enacted in 1928 as the local code for the Federal District on ordinary matters and for the entire Republic of Mexico on federal matters (D.O. of March 26, 1928), a special Federal Civil Code was recently enacted by the Federal Congress (D.O. of May 29, 2000), as amended.
Mexico is a federal, democratic and representative republic, composed of thirty-one free and sovereign states in matters regarding their internal order but united in a federation established pursuant to the principles set forth by the Constitution (Art. 40, Fed. Const.). The national sovereignty rests with the people who exercise said sovereignty through the Powers of the Union in cases within their jurisdiction, and through those of the states in matters that relate to their internal affairs, under the terms established by the Federal Constitution, and those of the State, respectively (Art. 41, Fed. Const.).
Prior to 2000, the federal government exercised for decades an almost omnipotent power, to the detriment of the autonomy of the States and their municipal governments. During President Vicente Fox's administration (2000-2006), an effort to enhance the true notion of federalism seems to be underway in an attempt to bring back a less asymmetrical relationship between the federal government and the states.
Mexico's federal constitutions of 1824 and 1857 were clearly inspired by the U.S. Constitution. In turn, the federalist notions present in these two leading constitutional documents influenced the debates and the content of Mexico's current Constitution of 1917.
b) The Executive Power
www.presidencia.gob.mx is the electronic portal in Spanish of the Presidency of the Republic. By clicking on the picture of the world, information in English and French is made available.
In Mexico the Executive Power is in the hands of the President of the Republic. The President is freely elected for a six-year, no re-election period, by the direct vote of Mexican citizens who have attained 18 years of age and have an honest way of living (Arts. 34-35, Fed. Const.). The presidential elections are organized and controlled by the Federal Electoral Institute, and controversial electoral issues are decided by an Federal Electoral Tribunal of the Federal Judicial Power, established in 1990.
The powers and obligations of the President of Mexico - as expressly enunciated in Article 89 of the Federal Constitution--closely parallel those of his counterpart in the United States.
When the respective Presidency of these two countries are compared, these may be the most salient differences between them: (1) the Mexican President, to run as a candidate for that position, must be a Mexican citizen by birth, "the son" [sic] of Mexican parents, and must have resided in Mexico "at least during twenty years," including the year immediately preceding the presidential election (Art. 82, paras. I and III, Fed. Const.); (2) the Mexican President occupies that high office for a six-year term (starting on December 1 of the election year) and cannot be re-elected (Art. 83, Fed. Const.); (3) in the conduct of Mexico's foreign affairs, the Mexican President shall observe these "normative principles": (a) the self-determination of peoples; (b) the proscription of the use of threats or force in international relations; (c) the legal equality of nation-states; (d) international cooperation for development; and (e) the struggle for peace and international security (Art. 89, para. X, Fed. Const.); and (4) the Mexican President, in filling up a vacancy for a Supreme Court justice (Ministro de la Suprema Corte de Justicia de la Nación), must submit to the Senate the names of three candidates for the Senate to choose one among them (Art. 89, para. XVIII, Fed. Const.).
After the long period of seventy-one years during which the candidates of the Revolutionary Institutional Party (Partido Revolucionario Institucional or PRI) exercised an absolute monopoly over presidential elections, this undemocratic situation changed in 2000 when Vicente Fox Quesada, the candidate of the opposition party Partido Acción Nacional (National Action Party or PAN), defeated the PRI candidate and became the President of Mexico. This unprecedented change in Mexico's political regime is still producing both predictable and unanticipated consequences in Mexico's political, legal, and socio-economic arenas.
In sum, the presidential victory of PAN in 2000, as it is now reflected in the administration of President Vicente Fox, is profoundly transforming not only the traditional powers and the role of the Executive Power in Mexico but, more importantly, is changing the country itself. For political and legal observers it is clear that the so-called "Meta-Constitutional Powers" enjoyed by the President of the Republic during the PRI era, are now being seriously questioned and subjected to what may be described as a cautious but methodical diminution to make them fit within the explicit parameters prescribed by the Federal Constitution. In other words, the political and legal contours of the President of Mexico are in the process of being transformed and re-defined.
c) The Legislative Power
This power is vested upon a General Congress, divided into two Chambers, one of Deputies (Diputados) and the other of Senators (Senadores) (Art. 50, Fed. Const.). At the opening of Congress, on September 1st of each year, the President of Mexico submits a written report describing the general state of the country's public administration (Art. 69, Fed. Const.) analogous to the U.S. State of the Union Address.
The General Congress has annual ordinary and extraordinary sessions (Art. 65, Fed. Const.). There are two periods of ordinary sessions: the first runs from September 1st to December 15th; and the second from March 15th to up to April 30th (Art. 66, Fed. Const.). Extraordinary sessions take place when convoked by the Permanent Commission (Comisión Permanente) to discuss a specific matter (Art. 67, Fed. Const.).
- (i) Chamber of Deputies (Cámara de Diputados)
www.cddhcu.gob.mx/leyinfo is the electronic portal (exclusively in Spanish) of the Chamber of Deputies.
This web site can also be accessed through: www.precisa.gob.mx by searching for: "Camara de Diputados."
The Chamber of Deputies is composed of 500 representatives of the country elected in their entirety every three years. Of this total, 300 are elected under the principle of relative majority vote (Principio de votación mayoritaria relativa) through the system of individual electoral districts (Distritos electorales uninominales), and 200 under the principle of proportional representation (Principio de representación proporcional) through the system of regional electoral lists (Listas regionales votadas en circunscripciones plurinominales) (Arts. 51-52, Fed. Const.). The election of these 200 deputies is subject to special electoral rules (Art. 54, Fed. Const.). The last election of Congress took place on July 4, 2003. A deputy cannot be re-elected for the immediately succeeding term.
- (ii) Chamber of Senators (Cámara de Senadores)
www.senado.gob.mx is the electronic portal (exclusively in Spanish) of the Chamber of Senators.
This web site can also be accessed through: www.precisa.gob.mx by typing searching for:
"Camara de Senadores" or "Senado."
The Senate is composed of 128 senators (Art.56, Fed. Const.) elected for a six-year term renewed in its entirety every election. Thus, there are four senators for each state (thirty-one) and for the Federal District (one). Out of this total of 128, two are elected for each state and the Federal District by relative majority vote; a third one goes to the largest political minority; and a fourth one is given based on the principle of proportional representation (Art. 56, Fed. Const.) A senator cannot be re-elected for the immediately succeeding term.
Any resolution passed by Congress acquires the category of a law or decree (Art. 70, Fed. Const.). Under Mexican Constitutional Law, (1) the President of the Republic, (2) federal deputies and senators, and (3) the State legislatures, have the right to submit legislative bills to Congress (Art. 71, Fed. Const.). Both the Chamber of Deputies and the Senate have exclusive powers to legislate in certain areas.
d) The Judicial Power
www.scjn.gob.mx is the electronic portal (exclusively in Spanish) of Mexico's Supreme Court of the Nation.
This web site can also be accessed through: www.precisa.gob.mx by searching for: "Suprema Corte de Justicia" or "Suprema Corte."
Pursuant to the Federal Constitution, the exercise of the Judicial Power of the Federation is vested in four entities: (1) a Supreme Court of Justice; (2) an Electoral Tribunal; (3) Collegiate and Unitarian Circuit Courts; and (4) the District Courts (Art.94, Fed. Const.). Save for the Supreme Court, the administration, monitoring and disciplining of Judicial Power is conducted by the Council of the Federal Judiciary (Consejo de la Judicatura Federal), as regulated by the Federal Organic Act of the Judicial Power (Ley Orgánica del Poder Judicial de la Federación, D.O. of May 26, 1995).
The Supreme Court is composed of eleven Justices (known in Mexico as Ministros or ministers) and functions in plenary (En banc) or in Chambers (Salas), which is composed of five Justices (Art. 94). Every four years, the Justices elect a Chief Justice among themselves, who cannot be reelected for the immediately succeeding period. Justices are nominated by the President of the Republic in a list submitted to the Senate that contains the names of three candidates; the Senate, after hearing the candidates, makes a final selection (Art.96, Fed. Const.). Justices are appointed for fifteen years and may be removed only for serious cause.
The Federal Constitution (Art. 105, Fed. Const.) and the Organic Act of the Judicial Power enumerate, in detail, questions relative to the composition, functioning, obligations, powers and jurisdiction of the Supreme Court, the Circuit Collegiate Courts and the District Courts, including their budget and other administrative matters. In general, the Supreme Court and the federal courts serve as appellate courts to lower federal and state courts.
The Supreme Court of Mexico and the Circuit Collegiate Courts, as indicated earlier, are responsible for rendering especially crafted decisions--known as Jurisprudencias--which constitute the sole instance under Mexican law whereby judicial decisions become legally binding to lower courts and authorities, in something akin to the stare decisis principle.
The Federal Suit of Amparo30
In addition, federal courts exercise exclusive jurisdiction over Amparo proceedings, resolving controversies arising out of: (1) laws or federal authority acts that infringe upon constitutional rights (Garantías individuales); (2) laws or federal authority acts that violate or restrict the states' sovereignty or the Federal District's jurisdiction; and (3) laws or acts of authorities of the states or the Federal District that invade the jurisdiction of federal authorities (Arts. 103 and 107, Fed. Const.).
Accordingly, Amparo is a sui generis federal suit filed by an individual (whether a Mexican national or a foreigner) in a federal court against a Mexican authority (federal, state or municipal) for the alleged violation of any of the constitutional rights (Garantías individuales) expressly enumerated by the Federal Constitution (Title I). The filing of this kind of an Amparo suit would be expected, for example, when a Mexican is detained by the police and subjected to long interrogatories without a valid cause; when a Mexican is tortured by military personnel; when a U.S. tourist is expelled by agents of Mexico's National Immigration Institute (similar to the former INS in the United States); when a U.S. attorney is denied a permit to render professional legal services in Mexico; when a U.S. religious cult is denied a permit from Gobernación to open a temple and offer religious services in that country, etc.
The filing of Amparo results in the immediate cessation (injunction) of the violation of the constitutional right(s) invoked by the Quejoso (aggrieved party), as ordered by the federal court (Suspensión del acto reclamado); the mandate by the same court ordering the authority in question to render a detailed report substantiating the case and its involvement (Informe Justificado); and an investigation by a Federal Prosecutor (Agente del Ministerio Público Federal) to determine whether any criminal offenses (federal or state) were committed, including the responsibility of the public servants involved in the case, etc.
Once in possession of all the necessary information, documents and data, and after the initial constitutional hearing (Audiencia constitucional) takes place, the federal court analyzes the evidence and the merits of the case and then renders its decision.
A second prong of a Judicio de Amparo is found when individuals or legal entities challenge the constitutional validity of (1) a given legislative enactment which has already been passed and published in the D.O. or (2) when a legislative bill is in the process of being discussed by Congress (Acción de Inconstitucionalidad). This is the case of the two final paragraphs of Article 103 of the Federal Constitution, and it may consist in a form of constitutional control or judicial review.
Both the substantive and the procedural aspects of an Amparo suit are governed by the Amparo Act (Ley de Amparo, D.O. of January 10, 1936, amended numerous times).
This article (Electronic Guide to the Best Mexican Law Web Sites) was posted in early January 2004 in the electronic website LLRX (www.llrx.com) thanks to the generosity of Ms. Sabrina I. Pacifici.