News Latin America Yasmin Esquivel and Arturo Zaldivar defend in Court that the Army control...

Yasmin Esquivel and Arturo Zaldivar defend in Court that the Army control the National Guard

The Mexican Supreme Court began on Monday the discussion of a draft sentence that proposes declaring unconstitutional the legislative reform that transferred control of the National Guard (GN) to the Army. Although the analysis has not concluded —the session was suspended and will continue on Tuesday—, only two of the 11 members of the plenary session of the Supreme Court, Arturo Zaldivar and Yasmin Esquivel, made positions this Monday that demonstrate their support for the National Guard — that was created as a civil security body differentiated from the military institutions—remains under the control of the Army, as established by the Legislative reform of September 2022. The project under discussion, prepared by Minister Juan Luis Gonzalez Alcantara, proposes to invalidate that reform with the argument that the Constitution expressly prohibits the participation of the Mexican Army in public security work in times of peace. The proposal, which was announced last week, provoked the reaction of President Andres Manuel Lopez Obrador, who has defended the transfer of the GN to the Ministry of Defense and warned that the Court would commit “a serious mistake” if it approved the project.

“This is the first time that this Supreme Court of Justice of the Nation has directly analyzed the National Guard,” said Minister Gonzalez Alcantara when reading his proposal for unconstitutionality action 137/2022. The GN was created in March 2019 through a constitutional reform for which the party in government, Morena, achieved a broad consensus with the opposition. The new corporation replaced the Federal Police and was placed under the command of the Secretary of Security and Citizen Protection, a precision —provided in article 21 of the Constitution— that highlighted the civilian nature of the new agency.

But, in September 2022, the pro-government steamroller in Congress approved a reform to several secondary laws with which it turned the Constitution on its head and consummated the conversion of the police force into a military appendage. The reform established that the GN would continue to be attached to the Secretary of Security, but that the Defense would take over its “operational and administrative control.” For the opposition in Congress and citizen groups, the modification violated what the Magna Carta states: that public security must be in charge of civil authorities and that the participation of the Armed Forces in this matter must be exceptional and regulated, not permanent. .

Ministers Yasmin Esquivel and Arturo Zaldivar in November 2021.Rogelio Morales Ponce (Dark Room)

in defense of the army

Minister Zaldivar, who was president of the Supreme Court, from where he forged a strong collaborative relationship with Lopez Obrador, defended the legislative reform that his colleagues refuted. The minister pointed out that neither the Constitution nor the international agreements signed by Mexico affirm that the mere participation of military personnel in police forces, or the fact that these are governed by principles or values ​​of military discipline, imply, by themselves, the denaturalization of its civil nature. He explained that several Latin American countries, such as Argentina, Colombia, Chile, Brazil and Ecuador, have police attached to institutions with a military vocation, examples that President Lopez Obrador has also cited to defend the reform.

Zaldivar maintained that, for the National Guard to lose its civil nature, a legal modification would be necessary that would grant it “national security” objectives —proper to the Armed Forces— and that its elements be trained to “defeat the enemy” with “tactics properly military”, and no longer in the police purposes of protection and control of citizens. “If the civil or military nature of an institution is defined by its objectives and its training, it can be concluded that the fact that military or marine personnel collaborate in the National Guard, and even carry out control functions, does not distort its civil character itself,” he said.

The minister went further in his defense and maintained that military participation in the GN is not only not prohibited but that it “is even desirable.” Zaldivar alleged that the absence of military discipline in the operation of the Federal Police —a precedent of the National Guard— led to the corruption of that public security institution at the highest levels, referring to Genaro Garcia Luna, who was secretary of Public Security of the Government of Felipe Calderon (2006-2012) and who in February was found guilty in the United States of the crimes of drug trafficking and organized crime. “The police forces that have had the greatest success in comparative law are those that have precisely adopted this scheme in return. Those police institutions exempt from disciplinary controls typical of the military field have proven to be much less effective, as demonstrated by the failed security strategy that prevailed in our country during the last decades and that favored the infiltration of organized crime among its ranks, even by highest level of command”, alleged Zaldivar.

In the same vein, Minister Yasmin Esquivel —who continues to drag legal proceedings related to accusations of plagiarism of her undergraduate and doctoral theses— denied that the public security work of the State has been militarized, since the National Guard continues legally under the civilian command of the Secretary of Security and Citizen Protection, which is in charge of designing the security strategy and public policy in this matter, not the Army, which, he said, only executes the provisions of said documents. “It seems to me that we cannot deduce that, because the Sedena is in charge of the operational and administrative control of the National Guard, this places that institution as the one responsible for public security,” she argued.

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