CIVICUS speaks with Carlos G Guerrero Orozco, a Mexican lawyer and co-founder and president of Human Rights and Strategic Litigation-Mexico (DLM Mexico), about a recent victory of Mexican civil society in defence of civic space.
DLM Mexico is a civil society organisation (CSO) that promotes human rights and the strengthening of the rule of law in Mexico by providing strategic litigation advice and promoting accountability.
What constraints does civil society experience in Mexico, and how is it working to preserve civic space?
Historically, Mexican civil society has been a retaining wall against government malpractice. For playing this role, which the authorities can find uncomfortable, it has been subjected to restrictions, particularly denial of legal recognition of organisations and their functions.
The state has reacted to the work of civil society by limiting its ability to act as a monitor, watchdog and check on power. In the legal area, it has sought to limit its capacity to undertake legal processes and generate accountability. One way of doing this is by disregarding the legal standing that allows CSOs to initiate appeals for protection and other proceedings to protect rights.
Under Mexican law, CSOs whose mission is to defend the human rights of groups such as children, Indigenous people, survivors of gender-based violence, victims of corruption or public mismanagement and people deprived of their liberty can claim legal standing by virtue of these groups’ special situation with the legal system.
DLM Mexico provides advice to CSOs, collectives, citizen groups, citizen participation committees and human rights defenders involved in strategic litigation cases, providing them with tools to strengthen their capacities in court and overcome obstacles they may face in proving their legal standing in the case.
Another way of constraining civil society is to target CSO authorities and hold them criminally liable for actions taken in the course of their work. This is what happened with a recent reform of the Mexico City Penal Code. The reformed code’s article 256 equated CSO leaders with public officials and specified that public servants – and therefore also CSO leaders – could be liable for corruption offences. By including CSO directors and managers in the definition of ‘public servants’, it extended to them the criminal liability public servants are under.
A particular concern was about the broad and imprecise wording of the definition of the crime of corruption as the conduct of anyone who ‘performs or fails to perform what the law requires them to perform or refrains from performing what the law forbids, in order to obtain an undue advantage of any nature, including financial, for themselves or for a third party’. This undoubtedly opened the door to arbitrary treatment.
The publication of the reformed Penal Code brought concern from various quarters, but particularly civil society, which issued a joint communiqué expressing its alarm.
DLM Mexico filed a request with the Mexico City Human Rights Commission to exercise its power to challenge laws deemed unconstitutional. Days later, the Human Rights Commission filed an action of unconstitutionality before the Mexican Supreme Court.
How was the case resolved, and what do you think its impact will be?
This month the Supreme Court discussed and resolved the case, declaring article 256 unconstitutional and void.
The Court established that, according to article 108 of the Constitution, it is not permissible to extend the definition of public servant to people who do not hold a position within the structure of the state. It also considered that the classification of CSO directors and managers as public officials was potentially prejudicial to their rights and freedoms because it created undue criminal consequences for private individuals. It clarified that the fact they receive public funds does not justify extending the penalties applicable to public servants to private individuals who manage CSOs.
This decision safeguards the rights of CSO leaders and ensures they can continue their work without fear of unfair criminal repercussions.
Although the case focused on Mexico City’s legislation, the ruling put a brake on other states’ intentions to include in their legislation sanctions against CSO staff for their activities, used to silence the voices of civil society. This is particularly relevant in a country where the judiciary is neither robust nor independent.
The Court’s decision is testament to the power of civil society advocacy and the importance of protecting civic space. It is a reminder of our collective ability to challenge and overturn laws that threaten our democratic freedoms.
What other issues are on civil society’s agenda when it comes to the rule of law and democratic freedoms?
Unfortunately, under the current administration there have been several issues that both civil society and the private sector have had to address. The president and members of his party use aggressive discourse towards civil society that is openly restrictive of civic space and hostile to judicial independence and autonomous bodies. The government has restricted access to public information, de-emphasised the protection of personal data, undermined the National Anti-Corruption System and downplayed Mexico’s crisis of enforced disappearances at the hands of organised crime.
DLM Mexico’s agenda has focused on strengthening the National Anti-Corruption System by addressing the problem of underreporting of corruption, calling for registration and transparency of beneficial ownership of companies and training officials to better investigate acts of corruption in civil and administrative matters.
Civil society’s reaction to defend against institutional erosion and the deterioration of the separation of powers was recently seen on the streets when many people mobilised in Mexico City and other cities across the country in the ‘March for Democracy’. A few weeks before the start of the June presidential election campaign, people mobilised against the government’s attacks on the National Electoral Institute, in defence of the independence of the judiciary and autonomous bodies and against the president’s undue influence on the electoral competition and his polarising attitudes.
Although there was no shortage of opposition politicians who tried to exploit it for political gain, the mobilisation was basically a defensive reaction by civil society to government abuses. Before marching, protesters presented a list of demands. However, far from providing any response, the government has hardened its positions even further.
Fortunately, Mexico still has strong institutions, as well as strong private and social sectors that take an interest in public issues. This tempers the risks to our democracy regardless of which party’s candidate wins the presidential election.
Civic space in Mexico is rated ‘repressed’ by the CIVICUS Monitor.
Get in touch with DLM Mexico through its website and follow @DLM_Mx on Twitter and @dlmx on LinkedIn.