The National Guard and constitutional fraud

The Senate completed the constitutional fraud that the Chamber of Deputies initiated by approving, without moving a comma, the presidential initiative on the National Guard. And it is that what is approved by the legislators openly goes over constitutional article 21 and deepens the militarization. There is no way to make these reforms compatible with a Constitution that expressly mandates that the National Guard be civilian.

The shortcomings of the modifications are multiple. The civilian chain of command is broken by proposing, in article 12 of the National Guard Law, that the first hierarchical level of the corporation be held by Sedena. Article 13 establishes a military intervention in the National Guard that exceeds the temporary support for its institutional consolidation and supposes that it assumes full control of it, under the concept that the military exercises “operational and administrative control”, while article 19 opens the door to the subordination of the Guard to the territorial military commands.

On the other hand, the powers of the National Guard are expanded with respect to the investigation of crimes and the performance of intelligence work, in article 21, although the assignment of these powers is contested before the Supreme Court of Justice, which unfortunately has It took too long to decide if this is constitutional. The scope of the military jurisdiction is also extended due to the effect of article 57 of the same Law. Finally, through the Sixth Transitory Article, it is proposed that the Security Secretariat transfer the corresponding budgetary and financial resources to Sedena, with which the increase continues. without controls of the military budget. Furthermore, this scheme is not presented as provisional, but as definitive.

It is clear: by not having enough votes to modify the Constitution, which opts in article 21 for the civil route in public security —thus establishing a true organic guarantee of the rights in favor of the people—, the men and women Deputies who hold the majority approved reforms that claim to respect the Constitution only to disguise their non-compliance. His proceeding fits into the definition that Minister Arturo Zaldivar provided about constitutional fraud: “essentially it consists of pretending that an act or a norm is compatible with the Constitution, when they are not.”

Undoubtedly, society yearns for a reduction in violence, which has caused so much pain and suffering for the last fifteen years. This is an urgent demand in the States most affected by violence, where the population is rightly tired and expects answers, whoever they come from. Therefore, it is desirable that the National Guard be consolidated. But going against the Constitution to hand over this nascent corporation entirely to the Army is a wrong decision, which will bring its own problems. The senators and the senators did not avoid this fraudulent mistake. It will be up to the Supreme Court to do so, so it is desirable that the subjects entitled to do so file an action of unconstitutionality.

We are entering the last third of a six-year term that in terms of security and justice is far from expected. In the first, for giving himself entirely to the military perspective, expanding the role of the military in security and in many other public tasks; in the second, for spending too much energy lashing out at the judiciary, when in reality our main problem of impunity has to do with the fact that we do not have functional and capable prosecutors, an issue on which steps have been taken during this Administration. In this context, the crisis of violence continues: it is not a legacy of the past.

Santiago Aguirre He is the director of the Miguel Agustin Pro Juarez Human Rights Center.

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