Discussing criminal immunity of public officials in Mexico

Last week, the Lower House of the Mexican Congress approved to remove constitutional immunity of two of its members from criminal liability. The first one, Mauricio Toledo, was accused of a number of illicit enrichment activities as prior mayor of Coyoacán, a municipality in Mexico City. The second one, Saul Huerta, was accused of statutory rape and sexual assault. The accusations against both were conducted by their own colleagues, assisted by Mexico City Attorney General’s office, in a form of a legislative trial. After a relatively quick legislative discussion, a substantial majority of the Lower House’s members decided to remove constitutional immunity of the two Federal Congressmen, so they could then be subject to criminal prosecution.

In the eye of someone unfamiliar with the Mexican legal system, it may appear that justice was done by this process. But in reality, this was a far from perfect solution. In fact, despite the Lower House’s decision, Mexican politicians such as Mauricio Toledo and Saul Huerta are still immune in many other ways and quite powerful under Mexican law. This brings us back to the ongoing discussion of the current overly broad constitutional protection that Mexican politicians enjoy under the current legal framework which requires an important overhaul to comport with principles of transparency, accountability and, more importantly, social justice.

Let’s begin by saying that the Mexican Constitution grants criminal immunity to an extensive list of public officials, either voted-in via elections or legally appointed at state and federal levels. Not only are the President, Senators, Congressmen, Secretaries of State, Attorney Generals, and Justices of the Supreme Court vested with immunity, but there is a much longer list at the federal and state levels which includes Governors, members of autonomous agencies, electoral authorities, mayors, local Congressmen, and the list goes on and on. It is estimated that at least two thousand five hundred public officials enjoy constitutional immunity from criminal liability.[1] So, what does this constitutional protection mean?

Constitutional immunity granted to public officials in Mexico consists of at least four layers of protection that make almost impossible for victims and prosecutors to bring public officials to trial and, more importantly, to make them accountable for breaking the law.

The first layer of constitutional protection consists of something akin to redeem public officials from prior criminal acts, or at least suspending any criminal actions against them for as long as they remain in office. Public officials will not be prosecuted, not even for prior criminal acts unrelated to their official role, unless removal of their constitutional immunity from criminal liability is approved by the Lower House of Congress. This runs afoul of the public interest, as some criminal charges against may become ineffective either by political frustration (see below) or by the statute of limitations.

Political frustration is quite prevalent, as no prosecutor has any incentive whatsoever to bring a case against a high-ranking public official if this requires approval from the majority of the Congress’ Lower House in the first place. The complexities for prosecutors are twofold: first, local and federal prosecutors face the risk of ruining their political career by bringing a case against a popular, powerful, and vested with immunity politician, especially if such a politician belongs to the same political party that appointed the current Attorney General. Most of the time, they are in the same boat, so to speak. Second, the political relationships and the political power of public officials who are protected by constitutional immunity are much greater than the resources and abilities of any prosecutors to initiate a case. For instance, since 1917 when the Mexican Constitution was adopted, only eight public officers have had their constitutional immunity removed.

Nonetheless, there are hundreds of petitions in the Lower House of Congress that have not ever been examined. Thus, unless political planets align differently in the Lower House, the odds for the removal of constitutional immunity are extremely rare.

The second layer of constitutional immunity comes into effect after the Lower House finds in favor of removing immunity from the public official. The offender may be tried criminally, but if he or she eludes a guilty verdict (because of the statute of limitations or some other technicality), they retake office as if nothing had happened. This is considered contrary to public interest: suffice it to say that in other countries (such as US or Japan), public officials resign even before being indicted or impeached,[2] as the sole public accusations are enough to ruin their reputation and legitimacy to perform official duties.

The third layer of constitutional protection is even more impressive! An official can be subject to criminal prosecution and resume their official duties later, but it can also happen the other way around: an official may be removed from office due to evidence of illegal conduct without being subject to any criminal liability. For instance, unlike the American impeachment in which an official can be kicked out of office and subject to criminal liability, the Mexican Constitution divide this into two different processes. Thus, the constitutional process of removing someone from official duties (article 110 of the Mexican Constitution) is not necessarily tied to the process of bringing criminal charges against them (article 111), even in cases where the removal from office under article 110 is strictly based on evidence of illegal conducts related to their official duties.

The fourth layer of protection is the most interesting one by far. I call this “Grasshopper Protection”. The constitutional criminal immunity of public officials should end when they leave office. Nevertheless, if the official “hops” from his current position to any other constitutionally protected one, their criminal immunity will be extended, and it cannot be removed as long as they remain in office. This is not only applicable if the official moves from a protected state position to another one at the state level, but it also applies if the official moves from his or her state position to a federally protected one. This totally bypasses notions of federalism and the constitutional division of powers. The outcome of this layer of protection is that Federal Congress may protect a federal official from state prosecution and just as equally, State Congresses may protect state officials from federal prosecution.

Mr. Mauricio Toledo’s case is, again, a good example of this. The crimes that he was accused of, as a Federal Congressman, were related to his presumably illegal conduct committed as mayor of Coyoacán, in Mexico City, which is a state level position. Therefore, strangely enough, Federal Congress needed to decide if State prosecutors (in this case Mexico City prosecutors) ought to perform their duties.

Up to this point the reader may infer that the possibilities of prosecuting and sentencing public officials are quite remote. This constitutional overprotection (commonly called “fuero” in Mexico) runs afoul of the principles of transparency, accountability and social justice, to say the least. So, what are some potential solutions to this problem? Politicians usually argue that amending the Constitution is a painstaking step, yet in recent years, that has not been the case, especially since Mr. Lopez Obrador took office in December 2018. The text of the Mexican Constitution has been reformed more times than ever since he began his term, and from what can be observed in legislative activity, this trend will be maintained over the next three years.

The Constitution states that the laws passed by Congress, and the treaties signed by the President and ratified by the Senate shall be the supreme law of the country. Mexico has signed and ratified several international treaties and conventions (UN, OECD and OAS) pledging to adapt its legal framework to effectively investigate and punish public corruption. In 2016, the Mexican legislature created a National Anticorruption System (SNA) launching, among other issues, an important legal overhaul of national and international anti-corruption efforts. Nevertheless, constitutional immunity of public officials remains untouched. It is time for international organizations to pressure Mexican Congress for effective reforms as directed by international conventions. It is high time to voice about how to get justice done.

[1] Casar, Maria Amparo, et. Al. El fuero en México. Entre inmunidad e impunidad, Centro de Investigación y Dociencia Económicas (CIDE), 2017, pp.48.

[2] In the United States, President Richard Nixon and high-level officials resigned in a series of events widely known as the “Saturday Night Massacre.” In Japan, Akira Amari resigned as Minister of Economy amidst allegations of bribery.

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