Washington College of Law
Center For Human Rights and Humanitarian Law
RESOLUTION No 01/90
CASES 9768, 9780, and 9828 (MEXICO)
May 17, 1990
HAVING SEEN:
- The Report prepared on Cases Nos. 9768, 9780, and 9828
of Mexico approved
provisionally at its session No. 1045 at its 76th Regular Meeting
on September 29, 1989.
- The observations of this Report of the Government of
Mexico.
WHEREAS:
- The Inter-American Commission on Human Rights
considered the Report mentioned
in point number 1 above, as well as the observations of the
Government of Mexico.
THE INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS,
RESOLVES:
- To approve the Report on Cases No. 9768, 9780, and 9828
as attached.
- To publish the Report in its Annual Report to the
General Assembly of the
Organization of American States in accordance with Article 41 g.
of the American Convention on
Human Rights.
FINAL REPORT ON CASES 9768, 9780
AND 9828 OF MEXICO
1. Introduction
- The Inter-American Commission on Human Rights has had
under consideration three cases
regarding the July 7, 1985, electoral process to elect deputies
in the State of Chihuahua (case 9768),
the July 6, 1986, municipal elections in the capital of the State
of Durango (case 9780), and the July
6, 1986, elections for governor of the State of Chihuahua. The
petitioners in all three cases belong
to the National Action Party (PAN), and they allege that
irregularities were committed by members
of the Institutional Revolutionary Party (PRI), the party in
power in Mexico.
- There are allegations of various de facto
irregularities in the years in question, both during the
vote recount and in the preceding period. It is also alleged
that, during the subsequent stage, the
complaints of irregularities were dismissed by the electoral
bodies because these were controlled by
the PRI and therefore lacked the impartiality and independence
that should characterize the electoral
bodies responsible for ruling on such matters. They alleged
that, even though the remedies under
domestic law had been exhausted, the requirement of exhausting
such remedies is not applicable in
these cases under the provisions of Article 46.2 of the
Convention, because due process of law is not
afforded for the protection of the rights they deem have been
violated. They expressly indicate that
the remedy of amparo is not applicable to political
rights, as the Supreme Court of Justice has ruled
time and again.
- Petitioners in the three cases allege violation of the
free exercise of political rights, set forth
in Article 23 of the American Convention on Human Rights, and
Article 8 of the Convention, which
sets out the judicial guarantees that must apply in the
determination of their rights. Furthermore, in
case 9828 petitioners allege violations of Article 5 (right to
humane treatment), Article 11 (right to
privacy), Article 13 (freedom of expression), Article 15 (right
of assembly), Article 16 (freedom of
association), Article 24 (right to equal protection), and Article
25 (right to judicial protection)
committed by government agents against PAN supporters during the
campaign.
- The Government of Mexico held that two of the cases
were inadmissible because remedies
under domestic law had not been exhausted (cases 9768 and 9780).
In the third case, it held that the
Inter-American Commission on Human Rights lacks jurisdiction to
render a decision on electoral
processes for reasons of national sovereignty and by virtue of
the application of the right of
self-determination of peoples. It further held that the remedy
of amparo to guarantee the rights
affected in this case was still pending.
- In the review of these cases, the Inter-American
Commission on Human Rights has had the
opportunity of studying the various aspects in question and deems
it would be more appropriate to
consider the aspects common to all three cases. The nature of
the situations was such that the
Commission felt the question would be more appropriately dealt
with under the provisions of Article
41.b of the American Convention on Human Rights, according to
which the Commission has the
powers
to make recommendations to the governments of the
member States when it
considers such action advisable, for the adoption of progressive
measures in
favor of human rights within the framework of their domestic law
and
constitutional provisions as well as appropriate measures to
further the
observance of those rights.
- In exercise of such powers, and acting under the
provisions of Article 50 of the American
Convention, the Commission sent to the Government of Mexico its
recommendations, which are
contained in the report provisionally approved on September 29,
1989, at its seventy-sixth session.
The Government of Mexico presented its comments to the
Commission's report, repeating some of
the arguments already presented and adding new ones. Those
arguments are discussed in section 3
of this report.
- Common elements in the three cases
a. De facto irregularities
- The three cases relate to alleged irregularities
perpetrated by the Institutional Revolutionary
Party (PRI), in government in Mexico, against candidates of the
National Action Party (PAN). In
the three cases, the claimants offer documentary evidence on the
events denounced, which they
consider a violation of their political rights set forth in
Article 23 of the Convention.
- The de facto irregularities denounced in case
9768 consist of the forgery of the certificates
of the original electoral tally sheets in certain polls. The
forgery, according to the claimant, deals with
both the numbers as well as the signatures of political party
representatives and officials, with proof
of the aforementioned. As a result, thereof, the majority which
the PAN had obtained became a
majority for the PRI.
- The de facto irregularities denounced in case
9780 also concern forgeries of the voter rolls
of several electoral polling places, the claimant alleging that
he has certified copies of the original
certificates in which the triumph of the PAN is verified, without
the Chairman of the Municipal
Committee allowing the examination of the certificate on which
the final results were based, which
were favorable to the PRI. The PAN representatives were
expelled, according to the claimant, when
they challenged the procedure being followed.
- The de facto irregularities denounced in case
9828 are more serious and important because
they refer to the legal procedures aimed at amending electoral
legislation to give greater control to
the government party, different episodes during the electoral
campaign--the use of funds and other
public resources, pressures to undermine freedom of expression,
elimination of people from the list
of voters, registration of non existent persons, arbitrary
creation and cancellation of polling
places--and, during the election, stuffing ballot boxes; early
opening of polling places; change of
location of polling places; refusal to recognize representatives
of opposition political parties; heavy
presence of police and the military during election day under the
control of the State Governor and
by the President of the State Electoral Commission, both from the
PRI, in charge of overseeing the
electoral process and protecting the ballot boxes. All of this
manipulation, according to the claimant,
led to a massive fraud after the election while voters were being
counted.
b. Internal remedies
- In the three cases, the de facto irregularities
denounced led to filing of writs with the
competent electoral bodies, who rejected them. The claimants
hold that the rejection was motivated
by political reasons since said organizations are controlled by
the PRI, and violate the right set forth
in Article 8 of the Convention or, ultimately, of Article 25.
- In case 9768, the claimant filed a complaint alleging
forgery with the Attorney General of the
Republic (Procuraduría General de la República) on
August 26, 1985, without any apparent final
result. Against the results consigned in the certificate of the
district tally, the claimant filed a
complaint in the Chamber of Deputies sitting as an Electoral
College, which declared it inadmissible
on August 23, 1985. On August 31, 1985, a writ (recurso de
reclamación) was presented to the
Supreme Court, the decision of which according to the claimant,
was not communicated despite the
fact that an address had been given for that purpose; he contends
that he heard through other
Deputies that his writ had been rejected.
- The claimant argues that the ruling of the Electoral
College concurs with decisions of the PRI
because most of its members belong to that political party. As
to the Supreme Court, its members
are named by the Federal Executive Power with the consent of the
Senate, which is made up
exclusively of members of the PRI.
- In case 9780, the claimant requested that the decision
of the Municipal Electoral Committee,
be revoked (recurso de revocación). That complaint should
have been heard by this body and that,
according to the claimant, was not processed, and no reasons
given. When faced with this situation,
the claimant filed a request for review (recurso de
revisión), which also was not processed. This lack
of procedure prevented an appeal to the Electoral College of the
State Congress, which ratified the
election without opposition. The writ of habeas corpus
was not filed because, according to the
claimant, Article 73.7 of the Law of Protection (Ley de Amparo)
declares it inadmissible for political
rights.
- The claimant believes this refusal to hear these
complaints against de facto irregularities is
based on the political orientation of the bodies in charge of
dealing with these remedies. Thus, he
states, the State Electoral Commission, in the State of Durango,
consists of the government Secretary
General who is also its President, named by the Governor of the
State of Durango, and, therefore,
it is logical to assume that the appointment is given to a member
of the PRI, and by the
representatives of the Legislative Power who, since the PRI is in
a majority, belong to the government
party; two magistrates of the Supreme Court appointed by the
plenary of that Court, whose members
are named by the Governor of the State (from the PRI) with the
consent of Congress (controlled by
the PRI); a representative of the Municipality of the Capital
(which on this occasion, as an exception,
included a representative of the PAN); a representative of each
political party (4 opposition plus the
PRI and 4 of its allies according to the claimant); a notary
public that will act as Secretary (following
an appointment by proxy from the Governor of the State). The
claimant alleges that said composition
gives the PRI total control of the aforementioned electoral body.
- For its part, the Municipal Electoral Committee in the
State of Durango, consists of four
commissioners appointed by the State Electoral Commission
(controlled by the PRI as the claimant
point out above), a commissioner of the corresponding
Municipality and one from each political
party, of which one is the PRI and the other four operate as
allies, always according to the claimant,
plus four other opposition parties. This had led, likewise, to
the control of this electoral body by the
government party according to the denunciation.
- The control mentioned by the claimant leads him to two
conclusions: first, that the rehearing
and revocation remedies should have been heard by the Municipal
Electoral Committee, where the
alleged forgery was perpetrated, which is contrary to every sort
of logic. The second conclusion is
that since every electoral body is controlled by the PRI, there
is no impartiality which guarantees due
process for electoral complaints, therefore, producing the
situation foreseen in Article 46.2 of the
American Convention, according to which the requisite of
exhausting internal remedies, when due
process does not exist for the protection of the rights which are
allegedly violated, does not apply.
- In case 9828, it is the Congress of the State of
Chihuahua which acting as the Electoral
College rules on elections and where the corresponding complaints
were filed and later rejected.
According to a provision of the Constitution of the State of
Chihuahua, the ruling of the Electoral
College is final, and unappealable. Moreover, the claimant
argues that the writ of protection
(amparo) is inapplicable to cases of political rights because of
an explicit provision of the Protection
Law (Ley de Amparo) (Article 73.VII) and by the reiterated
rulings of the Supreme Court.
- The claimant believes that the complaints were rejected
because the Electoral College is
controlled by the PRI and that, therefore, there is no legal due
process to protect rights which are
alleged to have been violated. He holds, therefore, that
domestic remedies have been exhausted,
despite the fact that due process does not exist with respect to
these rights.
- The Government's position
- The position of the Government of Mexico in the
electoral cases changed, since it first
adopted a procedural position in cases 9768 and 9780 and objected
in toto to case 9828, including
the jurisdiction of the IACHR and the limits of the obligations
as a party to the American Convention.
In its observations to the Commission's report, the Government of
Mexico advances its arguments
on the inadmissibility of the cases under consideration,
interprets the scope of Article 23.1.b of the
American Convention with regard to political rights and electoral
processes, sets out the possible
effects of a decision of the Commission on the principle of
nonintervention, and warns of the
consequences such a decision could have on the validity of the
Convention for Mexico.
3.a. Admissibility
- Therefore, in case 9768, the Government of Mexico holds
that the case is inadmissible since
more than six months have elapsed since the Supreme Court
notified the Chamber of Deputies of its
rejection of the writ submitted by the claimant. With respect to
case 9780, the government holds that
it is also inadmissible because the claimant did not exhaust
internal remedies against the resolution
of the Electoral College of the Chamber of Deputies of the State
of Durango since a writ could have
been filed before the Supreme State Tribunal, but was not filed.
- As to the admissibility of the cases, the arguments
advanced repeat the government's previous
positions. Thus, there is a restatement of the argument that the
petitioner in case 9768 was given
notice, in accordance with the law, in the Chamber of Deputies,
to which he had not been elected and
of which he was consequently not a member. The petitioner
had completed the entire process of
seeking remedies under domestic law and had established domicile
to be given notice pursuant to the
provisions of the Code of Civil Procedures, which the government
did not apply even though it was
an altogether reasonable procedure. The clearcut shortcoming of
the law governing notifications
justifies in this case the recommendation that the Commission
sees fit to make on the need for Mexico
to bring its domestic legislation into line with the requirements
for proper protection of the rights set
forth in the Convention.
- In its comments, the Government of Mexico develops at
length the argument put forward in
case No 10.180 (which is not one of the cases on which the
report was based) on the appropriateness
of the remedy of amparo in connection with political
rights. In this respect, the government indicates
that the petitioners must object to the acts in violation of
their political rights on the basis of the
principle of legality--guaranteed by Article 14 of the National
Constitution--in accordance with
opinion 127 of the Supreme Court, which would allow recourse to
amparo. Remedies under
domestic law would therefore not be exhausted.
3.b. Alleged Incompetence of the Commission
- In case 9828, the Mexican government adopts a rigid
position, after three petitions for
postponement of the deadline to respond to the complaint. Said
position is then partially modified
by the government. The arguments are presented below.
- The first argument of the Mexican government is that
the assessment of elections is a matter
regulated by the Federal Constitution and the State Constitution
and that, since the Constitution is
the highest law, treaties must submit to it. Both Article 60 of
the Federal Constitution, as well as
Article 64 of the Constitution of the State of Chihuahua
establish that the rulings of the electoral
bodies in charge of elections are "final and unattackable" or
"irrevocable." Hence, the decisions of
these electoral bodies "is not and cannot be subject to
international jurisdiction," therefore, the
examination of the complaint is not pertinent and must be
declared inadmissible.
- The other argument of the Mexican government is that if
a "State agreed to submit itself to
international jurisdiction with respect to the election of its
political bodies, a State would cease to be
sovereign." "There is no principle of international law of
international obligation on the part of
Mexico that establishes that international bodies examine the
composition of the political bodies of
the United States of Mexico." As a result of this reasoning, the
government holds the complaint to
be inappropriate, and, therefore, believes that it should be
declared inadmissible.
- The Government of Mexico also invokes the principle
(deeming it a right) of the
self-determination of peoples, and believes that the Commission
would violate said principle if it
accepted the denunciation because it would infringe upon the
political autonomy of the State of
Chihuahua. The aforementioned principle would also be affected
if an interpretation of the American
Convention violated the right of a sovereign state to elect its
political bodies, which furthermore,
would be in conflict with the Pact of San Jose, which must be
compatible with the aim of the treaty
and which must be carried out in good faith, as set out in the
Vienna Convention.
- Finally, the Mexican government holds that the American
Convention does not limit the
sovereign powers of the States to elect their political bodies
and that Mexico, when it ratified the Pact
of San Jose, "did not conceive that the same could be interpreted
so as to give jurisdiction to an
international body to review the election of its political
bodies." If this had in fact occurred, the
government holds that it would abide by its Constitution and
would deny legal force to anything that
would oppose it. Consequently, it would deny jurisdiction to the
Commission to judge the results
of the elections.
- At a later time, the Government of Mexico claims that
the petitioner had not exhausted
domestic remedies, thereby partially modifying its position with
respect to the irrevocability of the
decisions of electoral bodies, without specifying what procedures
are available. It reiterates its
position on the lack of jurisdiction of the Commission to render
a decision on electoral processes.
- In its comments on the Commission's Report, the
Government of Mexico sets forth a new
interpretation of the rule contained in article 23.1.b of the
American Convention. According to that
interpretation, the right protected by the Convention is the
right "to vote and to be elected," which
is an individual right of immediate enforceability that imposes
upon the State an obligation not to act.
In contrast, the need for the elections to be legitimate imposes
upon the State an obligation to act.
Based on this reasoning, the government maintains that
The Commission is competent to consider individual
petitions concerning
human rights of immediate enforceability which the States are
obligated to observe
..., but it is not competent to consider petitions concerning
collective rights that the
State is obligated to develop progressively for its inhabitants.
The need for honest
elections imposes upon the State an obligation to act: to
progressively develop, in
accordance with circumstances and conditions in each country, the
guarantee that
voters may freely express their will.
- The government's reply refers also to elections,
describing them as "internal processes" that
affect the rights of citizens (rights which the Mexican legal
system distinguishes from individual
rights) and to their characteristics (page 10).
- After setting forth the interpretation underlying the
distinction between the right to vote and
to be elected and the right to have legitimate elections, the
Government of Mexico, in its comments,
states that any conclusion issued by the Commission on the
legitimacy of the elections would violate
the principle of nonintervention:
... Any conclusion issued by the Commission on the
"legitimacy" of an electoral
process would be an attempted threat against the personality of
the officials elected
in that process and would constitute an act of intervention,
according to the definition
set forth in Article 18 of the Charter, by which the Organization
of American States,
of which the Commission is an organ, is forbidden to carry out by
the second
paragraph of Article I of its Charter.
- The government further maintains in its comments that
"... if the Convention allowed the
Commission to issue conclusions on the legitimacy of elections in
the States Parties to the
Convention, then the Convention would be juridically null in the
extreme" because the principle of
nonintervention is a mandatory rule in inter-American law.
Accordingly, if the Commission persists
in issuing opinions on "the conditions for electoral processes in
Mexico, on the basis of individual
petitions, and thus insists on threatening the personality of
individuals who represent the Mexican
State, the Convention will be vitiated."
- Observations on the Government's position
- The observations on the Government's position fall into
two categories: those pertaining to
the Government's procedural position with respect to cases 9768
and 9780 and those pertaining to
the substantive arguments advanced in case 9828 and in the
comments on the Commission's report.
4.a. Admissibility
- As to the statement that the complaint in case 9768 is
untimely because it was presented after
six months from the date on which the Supreme Court notified the
Chamber of Deputies of its
decision on the writ filed by the claimant, the latter holds that
such a requirement does not apply
because he had given his address so that he might be served
notice, which was never forthcoming.
The claimant holds that it is illogical that the Chamber of
Deputies be given notice when a casually
adopted decision stripped him of his position as Congressman,
while stating that the Supreme Court
itself has set precedents on the need to personally give notice
to anyone affected by its decisions. The
regulation of the law on electoral processes, known as LOPPE--in
force at this time--stipulates
personal notice in Article 153, while Article 240 of this law
provides for submission of the Supreme
Court decision to the Chamber of Deputies. The claimant adduces
that this lack of personal notice
is contrary to Article 8 of the Federal Constitution and that is
why a personal notice should have been
given, to fill the vacuum, as stipulated in the Mexican Code of
Civil Procedure.
- In case 9780, the government adduces that internal
remedies have not been exhausted, while
the claimant argues that the repeated refusals by electoral
bodies to hear his writs preclude the
possibility of continuing the process. Moreover, that the
composition of the bodies called upon to
decide the complaint is evidence that there is not the requisite
of due process to protect his violated
rights.
- The issues to be resolved in the cases under
consideration are, in the first place, specification
of the scope of political rights defined in Article 23 of the
American Convention with respect to the
characteristics that elections must have in accordance to the
Convention. Second, an analysis of the
jurisdiction of the organizations created by the American
Convention to protect these rights and, in
the specific case of the Inter-American Commission on Human
Rights with regard to political rights,
through the different pronouncements on the subject. Third, it
must refer to the obligations acquired
by Mexico when it ratified the Convention as regards political
rights, ending with the specific
allegations of the claimants and the government in the cases
under consideration.
4.b. The political rights in the American Convention
- Political rights are recognized by Article 23 of the
American Convention on Human Rights
which states that:
1. All citizens must enjoy the rights and opportunities
listed below:
a. To participate in public affairs, directly or
through freely elected
representatives;
b. To vote and be elected in authentic periodic
elections, carried out
through universal and equal suffrage and by a secret vote that
guarantees the
free expression of the will of the electorate, and
c. To have access, in general conditions of equality,
to the public
functions of their country.
2. The law can regulate the exercise of rights and
opportunities referred to in the
aforementioned article, based solely on age, nationality,
residency, language,
education, civil or mental capacity, or sentence, by a competent
judge, in a criminal
process.
- The transcribed text fundamentally coincides with
Article 25 of the International Covenant
on Civil and Political Rights and recognizes as background the
text of Article 21 of the Universal
Declaration of Human Rights. The three aforementioned texts
refer to authentic, universal, and
periodic elections, by secret vote or another method to express
the will of the people. The American
Declaration of the Rights and Duties of Man, for its part, refers
to "genuine" elections, the only
different wording in Article XX.
- It is important to point out that Article 27, paragraph
2, of the American Convention,
referring to the suspension of guarantees "In case of war, public
danger or any other emergency that
threatens the independence or security of the State party...,"
does not authorize the suspension of
political rights.
- Hemispheric legal discourse has insisted, for its part,
on the existence of a direct relationship
between the exercise of political rights thus defined and the
concept of representative democracy as
a form of the organization of the State, which at the same time
presupposes the observance of other
basic human rights. Indeed, the concept of representative
democracy is based on the principle that
it is the people who are the nominal holders of political
sovereignty and that, in the exercise of that
sovereignty, elects its representatives--in indirect
democracies--so that they may exercise political
power. These representatives, moreover, are elected by the
citizens to apply certain political
measures, which at the same time implies the prior existence of
an ample political debate on the
nature of policies to be applied--freedom of expression--between
organized political groups--freedom
of association--that have had the opportunity to express
themselves and meet publicly--freedom of
assembly.
- On the other hand, the observance of the abovementioned
rights and freedoms requires a
juridical and institutional order in which the laws are above the
will of the leaders and in which there
is a control by some institutions over others, to preserve the
purity of the expression of the popular
will--the rule of law.
- The Commission has referred in numerous opportunities
to the exercise of political rights
within the framework of representative democracy and in its
relationship with the other basic rights
of human beings. Said statements have never been attacked by any
of the member States of the
Organization, and the General Assembly, acknowledging the
recommendations and observations of
the Commission, has restated on numerous occasions the need to
hold authentic and free elections,
establishing a direct link between this electoral mechanism and
the system of representative
democracy which the basic instruments of the Organization
consider as the basis of continental
solidarity and as the system which best protects human rights.
- In short, the exercise of political rights is an
essential element of representative democracy,
which also presupposes the observance of other human rights.
Furthermore, the protection of those
civil and political rights, within the framework of
representative democracy, also implies the existence
of an institutional control of the acts of the branches of
government, as well as the supremacy of the
law.
- Since popular will is the basis for the authority of
government, according to the terms of the
Universal Declaration, it is consistent with a method for naming
public officials through elections.
Both the Universal Declaration and the American Declaration, the
International Convenant on Civil
and Political Rights and the American Convention on Human Rights
coincide in that elections must
have certain specific characteristics: they must be "authentic"
("genuine" in the American
Declaration), "periodic", "universal" and be executed in a manner
that preserves the freedom of
expression of the will of the voter.
- Bearing in mind the characteristics of the allegations
contained in the cases under review, the
presentation that follows will only refer to characteristics of
"authenticity" which elections must have
since the other characteristics are not in question in these
cases. Therefore, an analysis will be made
of the authenticity of the elections, according to pronouncements
of the Inter-American Commission
on Human Rights with regard to specific situations.
4.c. Authenticity of the elections
- The act of electing representatives must be
"authentic," in the sense stipulated by the
American Convention, implying that there must be some consistency
between the will of the voters
and the result of the election. In the negative sense, the
characteristic implies an absence of coercion
which distorts the will of the citizens.
- The different pronouncements which the Inter-American
Commission on Human Rights has
made on the subject, and which will be presented below, show that
the authenticity of elections covers
two different categories of phenomena: on one hand, those
referring to the general conditions in
which the electoral process is carried out and, on the other
hand, phenomena linked to the legal and
institutional system that organizes elections and which
implements the activities linked to the electoral
act, that is, everything related in an immediate and direct way
to the casting of the vote.
i. General conditions of the electoral process
- As to the general conditions in which the
electoral contest takes place, from the concrete
situations considered by the Commission we can deduce that they
must allow the different political
groups to participate in the electoral process under equal
conditions, that is, that they all have similar
basic conditions for conducting their campaign. In negative
terms, this characteristic implies an
absence of direct coercion or undue advantages for one of the
participants in the electoral contest.
Some texts prepared by the Inter-American Commission in regard to
the matter are presented below.
- The Commission, in its 1982-1983 Annual Report,
indicates that the municipal elections held
in Haiti in 1983 "were carried out in an atmosphere of insecurity
and fear because of the virtual
existence of a state of siege, the absence of individual
guarantees and while the principal opposition
leaders were imprisoned or in exile..." (page 27). With respect
to Nicaragua, in that same Annual
Report, the Commission in considering the political parties law
of August 17, 1983, noted that it
should be implemented with an electoral law "that establishes the
conditions and circumstances
required to hold free, secret, and informed elections within a
short time, and to which all political
sectors of Nicaragua can have access" (page 28).
- Also in the 1982-1983 Annual Report, when referring to
elections in Paraguay, the
Commission noted that the existing state of siege during the
electoral campaign, as well as the
repressive laws "determined that the electoral process had been
conducted in an environment of
restrictions on public liberties, of fear and insecurity and
while the opposition leaders... were
prosecuted and jailed or expelled from the country" (page 28).
- Also in the 1983-1984 Annual Report, the Commission
considered the general conditions
affecting electoral processes, pointed out that as to Nicaragua:
... The Commission has been able to verify that during
the current electoral
process the Sandinista National Liberation Front has profusely
used all of the
resources which the power of the State, which it holds, puts at
its disposal, placing
it in an advantageous position over other contenders. In this
matter, the denounced
harassment of political and labor leaders constitutes an
unacceptable method. In this
sense, the IACHR thinks that it would be very positive if the
Government of
Nicaragua were to use all its available resources to achieve, in
the next elections, the
participation of all of those who represent different political
options, with absolute
equality (page 119).
- Also in its Report on the Situation of Human Rights in
Chile in 1985, the Inter-American
Commission, when it criticized the plebiscite to which the 1980
Constitution was subjected, stated:
The Commission is not in a position to refer to the
specific irregularities in the
plebiscite that were reported. However, that does not preclude
it from forming a
judgment on the circumstances prior to it, and considering that
the lack of electoral
rolls, the existence of the state of emergency, the inactivity of
political parties, the
practical disadvantages of opposition sectors in access to the
information media, and
the absence of viable options to the rejection of the proposal of
the Government, are
all elements that seriously affect the credibility of that
procedure. (page 272).
- In the conclusions of the chapter referring to the
exercise of political rights of the
aforementioned Report on Chile, the Inter-American Commission,
when referring to the referendum
in 1978 as well as the 1980 plebiscite expressed that in both
occasions there existed:
... restrictions arising from the existence of states
of constitutional emergency,
which have had a negative impact on the exercise of other human
rights associated
with the exercise of political rights such as the right to
freedom of expression and
opinion, the right of association, the right of assembly, and the
right to personal
freedom. The Commission has also been able to observe that, when
those polls were
held, political parties were proscribed or dissolved and that a
significant group of
Chileans was impeded from returning to the country. The
Commission has also been
able to observe that when those polls were held, the Government
used all the resources
at its disposal and put the opposition in a clearly
disadvantageous position. In the
opinion of the Commission, these serious restrictions violate the
principle of pluralism,
which is characteristic of a regime of representative democracy;
they also affect the
freedom and the authenticity that are fundamental characteristics
of any poll in which
the right to vote is exercised. All these elements cast
well-founded doubts on the
credibility of the two procedures (pages 282-283).
- In its 1986-1987 Annual Report, also referring to Chile
and the background analyzed in its
1985 Report, it was pointed out that:
Also in light of previous experiences and in accordance
with human rights
norms, the Commission must point out that the exercise of the
right to vote must be
included in a context favoring the authenticity of elections in
which the free
expression of the will of the voters is ensured, as Article 23 of
the American
Convention on Human Rights states.
The Commission therefore hopes that this important
period that is beginning
will help to establish an atmosphere that will encourage citizens
to make these
important decisions. In this regard, it would be very useful for
those taking part in the
political process to avoid at all costs the use of violence and
proscription, such as has
been repeatedly requested by important sectors of Chilean
society. In the
Commission's view, it is essential to break the vicious circle
generated by the
proscription and violence that threatens to distort the Chilean
political scene.
In the Commission's view also, it is of basic
importance that in the period
before the scheduled election, the various political groups be
given every guarantee
and means to have their views expressed and accurately
transmitted to the voters.
Accordingly, the Commission regards as positive the steps taken
by the Government
to allow important opposition leaders to take part again in the
country's political life
after their long exile (p. 220).
- With respect to Paraguay, the Inter-American Commission
pointed out, in its Report on the
situation of human rights in that country in 1987, the deficient
conditions in which electoral processes
are carried out, when it stated that:
It must also be remembered that elections have been
held under the current
state of siege, which is lifted for 24 hours only, on the day of
the elections. The many
restrictions on the action of political opponents resulting from
this situation have also
been adduced to justify abstention from voting. Such
restrictions include the arrest
and harassment of political opponents and the ban on public
meetings and party
meetings, which are prohibited during the state of siege. Those
provisions have not
been applied, however, in the case of acts of the official party.
In addition to those restrictions, mass communications
media are controlled
directly or indirectly by party members or persons close to the
President of the
Republic, as discussed in Chapter V of this report. Even simple
political information
about the activities of opposition parties sufficed for numerous
repressive measures
to be taken against the ABC Color newspaper and Radio
Ñandutí.
- With respect to Chile, in its 1987-1988 Annual Report,
the Inter-American Commission noted
that the mature and reasoned exercise of the right to vote during
the 1988 plebiscite demanded a
series of conditions in effect for a sufficiently long period
before the aforementioned electoral act.
Those conditions were the lifting of the states of exception, a
sufficient number of registered voters,
equitable access by the different political positions to
communications media and the absence of any
form of pressure on voters (page 306).
- After verifying the existence of the first two
conditions, the Commission analyzes the situation
of the communications media to point out that:
The presentation makes it possible to draw the
conclusion that access to
communications media, during the period covered by the present
Annual Report and
with reference to the plebiscite's campaign, has been
characterized by a disproportionate presence of the government,
which has used all the resources at its disposal
to promote messages and images that favor its position in the
next plebiscite. To that,
numerous restrictions, legal and the facto, must be added,
those affecting independent
organs of expression and journalists and political leaders.
Also, it must be pointed out
that the authorization to broadcast political programs
constitutes progress that,
nevertheless, does not compensate the unequal access to
communications media
derived from the aforementioned circumstances (pages 307-308).
- As to absence of pressure on Chilean voters during the
1988 plebiscite, the Commission points
out in the abovementioned Annual Report, "the existence of a wide
range of resources employed by
the government, whose effect is to cast a favorable light on its
policies among citizens. Some of these
resources, consist in legal norms and others are practices
indulged in because of lack of controls to
prevent these government actions." (Page 308.)
- In this regard the Commission points out three types of
situations: the intimidation campaign
as a result of official statements on the effects of a triumph of
the opposition, the activities carried
out by mayors and the threats and actions against opposition
leaders originating from unidentified
groups which have been occasionally linked to security forces
(page 308).
- In its Report on the Human Rights Situation in Panama
of 1989, the Commission stated
regarding the electoral process that lead to the elections of May
7, 1989:
The general conditions in which the process was taking
place ... were slanted
in favor of the ruling party coalition and against the opposition
because of the lack of
freedom of expression, the serious restrictions on the
opposition's right to personal
liberty, the grave violations of the right of assembly and the
intimidation of members
of the opposition and pressures exerted against voters to support
the ruling party
candidates, both by high-ranking government officials and by
officers of the Defense
Forces. (Page 52)
ii. Organization of the voting process
- Another aspect linked to the authenticity of elections
is the organization of the electoral
process and the actual casting of votes. With regard to this
subject there have also been numerous
statements by the Inter-American Commission in connection with
specific situations analyzed in its
annual or special reports. Some extracts are included in order
to refer to their main features.
- Therefore, in the 1978 Report on the Situation of Human
Rights in El Salvador, after
analyzing the exercise of political rights, the Commission
reaches the following conclusion:
There is a generalized skepticism on the part of
citizens with regard to the
right to vote and participation in government. In particular,
opposition political
parties go as far as doubting the possibility of having pure and
free elections, not only
in the light of experiences during recent elections, but also
with respect to the
structure of the electoral system and the obstacles which parties
face to organize in
the interior of the country. Because of all this, the Commission
is of the opinion that
electoral rights are not effective in the present circumstances.
- In view of the aforementioned, the Commission
recommends to the Government of El
Salvador in that Report to "Reform the electoral system,
specially reorganizing the Central Council
on Elections with the aim of achieving an equitable
representation of political parties in it so that
confidence in the system is restored" (page 153).
- In the Seventh Report on the Situation of Human Rights
in Cuba, in 1983, the Commission
deems that one of the elements that determines the limited
political participation of the population
in important matters is the result of electoral mechanisms and
control exercised over it by the
Government and the Cuban Communist Party. After analyzing the
principal characteristics of the
Cuban electoral system, it points out as a "counterproductive"
element the preponderance of that
political party, whose leaders intervene "in a decisive manner in
the operation of mechanisms to select
candidates to occupy free elective offices" (pages 44, 45, and
48).
- The Commission also refers to the legal and
institutional system entrusted with the
organization of elections in the Special Report on Paraguay in
1987, when, referring to elections in
that country, it analyzes the effect of proportional
representation current when its measures were
applied to the Electoral Statute (Law 886/81). According to said
measures, two thirds of the
members of electoral boards are members of the government party,
when these are the bodies
entrusted with the organization of elections. This led the
Commission to conclude that:
The system instituted through the Electoral Statute...
seriously demeans the
electoral process because it gives a party not only the absolute
majority of the
legislative bodies, but also of the bodies entrusted with
organizing the electoral
process. This system lacks, therefore, the necessary
institutional controls which
guarantee the purity of elections (page 106).
- In the 1986-1987 Annual Report, the Commission refers
to the electoral process in Chile at
that time, discussing the provisions of the Voter Registration
Act designed to organize the
registration procedures and to create an Electoral Service. The
Commission underscores the
relevance of criticism formulated at that time to the practical
implementation of the law (page 236).
- In the same Annual Report, the Commission extensively
examines the crisis in Haiti as a result
of the confrontation between the Provisional Electoral Council
and the National Government Council,
which is in great measure attributed to the struggle for control
over the operational aspects of the
election process (pages 258 to 263). This is again reviewed in
detail in the Report on the Situation
of Human Rights in Haiti in 1988.
- In its 1989 Report on the Human Rights Situation in
Panama, the Commission points out that
"the legal and institutional system for the organization of
elections offered no guarantees of impartial
conduct on the part of the organs responsible for implementing
the actions related to it." (Page 52)
- According to the presentation on the opinions of the
Inter-American Commission on Human
Rights regarding specific situations related to the authenticity
of the elections, the purpose is to
achieve general conditions so that the electoral process offers
every group that participates an equal
opportunity.
- The absence of coercions implied in this has led the
Commission to specifically bear in mind
the existence of states of exception that restrict the exercise
of political rights. This measure gives
the authorities very powerful instruments of control over the
opposition such as freedom of
expression, the freedom of assembly, the right to residency and
travel, and the right to personal liberty
and judicial guarantees.
- With respect to the exercise of the right to freedom of
expression, the Commission has
considered the manner in which the government uses its power both
for disseminating messages in
its favor as well as restricting the possibility of the
opposition to broadcast its message. On that
matter the Commission has analyzed the legal measures which
regulate the exercise of this right and
practices related to it, studying both direct and indirect
restrictions which can be used by the
authorities against the opposition.
- With respect to the freedom of assembly, the experience
of the Commission has led it to
examine the restrictions of this right resulting from states of
exception or other legal restrictions
(police permits, for example) or the use of indirect controls
such as the obligatory participation of
public employees in demonstrations.
- An element of special importance with respect to the
general conditions in which electoral
processes are conducted, are the activities of groups informally
linked to one of the participating
parties--usually the government party--who, through acts of
violence, tend to intimidate those who
oppose them. The Commission has referred, on numerous occasions,
to situations the effect of which
is to modify the basic conditions of equality under which
elections must be held.
- As to specific features of the organization of
elections, the Commission has referred to the
laws that regulate them with the aim of determining whether those
laws guarantee both the adequate
casting of the vote, as well as their correct tally, underscoring
the powers vested in those bodies
entrusted with implementing the activities of the electoral
process and of monitoring both the
implementation as well as the results. The institutional system,
therefore, has been thoroughly
examined by the Commission.
- The aim of this examination has been to detect the
possible manipulation of the process in
favor of those who control institutions (usually the government,
a political party or military forces),
determine who decides on the validity of the vote (composition of
the electoral bodies) and how their
decisions are verified (appellate bodies).
- In this regard, the Commission has examined aspects of
practical operations such as electoral
rolls and registration requirements; the composition of polling
stations; the composition of the
electoral tribunal and its powers, and the existence of
understandable ballots, devoid of any influence
on voters.
- As can be seen, the authenticity of the elections has
been the subject of numerous and frequent
pronouncements by the Inter-American Commission on Human Rights.
They have included
references to the general conditions in which the electoral
contest has taken place and equal
participation of all the various political groups; the
pronouncements of the IACHR have also referred
to the organization of procedures employed for casting of the
votes and the monitoring of the results,
as well as institutional and legal aspects. The activity of the
Inter-American Commission in this
regard has been aimed at obtaining elements that make it possible
to assess the relationship between
popular will and the final results of the electoral contest since
this is what is meant by "authenticity"
of elections to which universal as well as regional legal
instruments on human rights refer. When so
doing, the Commission has performed the functions assigned to it
by the American Convention on
Human Rights, as analyzed below.
4.d. The Competence of the Commission
- The Commission considers that it is competent to
examine the cases relating to the complaints
and to adopt the decision that, according to the Convention, its
Statute and Regulations, it deems
pertinent (Art. 44 of the Convention), since political rights, as
mentioned above, are among those
protected by the Convention (Art. 23), as well as by Article 25
of the United Nations Covenant of
Civil and Political Rights, which has also been ratified by
Mexico on March 23, 1981. This gives the
Commission competence to act accordingly.
- It must be pointed out, that Article 23 has two parts:
paragraph 1, letters a, b and c that
enunciate the nature of the rights protected and paragraph 2
which sets out the reasons that are the
basis for the regulation of political rights, something to be
considered jointly with Article 29 of the
Convention according to which States, when regulating the
exercise of rights and opportunities
referred to in paragraph 1 of Article 23, cannot "limit them to a
greater extent" than stipulated in the
Convention.
- The Commission considers that the act of ratifying the
American Convention presupposes
acceptance of the obligation of not only respecting the
observance of rights and freedoms recognized
in it, but also guaranteeing their existence and the exercise of
all of them. It is these elements of
political rights presented in item 5 of this document that the
State commits itself not only to respect
but "guarantee their full and free exercise," according to
Article 1.1 of the Convention. It must be
pointed out that the Inter-American Court of Human Rights in its
Decision of July 29, 1988, in the
case of Velásquez Rodríguez, has stated that
Article 1.1 of the Convention:
Article 1(1) is essential in determining whether a
violation of the human rights
recognized by the Convention can be imputed to a State Party. In
effect, that article
charges the States Parties with the fundamental duty to respect
and guarantee the
rights recognized in the Convention. Any impairment of those
rights which can be
attributed under the rules of international law to the action or
omission of any public
authority constitutes an act imputable to the State, which
assumes responsibility in the
terms provided by the Convention.
- According to the Court, "this obligation implies the
duty of the State party to organize all the
State apparatus and, in general, all the structures through which
the exercise of public power is
manifested, in such a manner that they are able to legally insure
the free and full exercise of human
rights." That is the basis of the obligation stipulated in
Article 2 of the Convention for the adoption
of measures of internal law to make those rights and liberties
effective. Therefore, this carries with
it the obligation of the State party to adapt its internal
legislation when it suffers defects that prevent
or hinder the full observance of the rights recognized by the
Convention and, in this specific case, the
rights protected by Article 23.
- The competent organs to "decide on matters related to
the fulfillment of commitments
contracted by the State party in this Convention" are, according
to Article 33, the Inter-American
Commission on Human Rights and the Inter-American Court of Human
Rights with regards to the
States that have expressly accepted its jurisdiction. The
Commission, therefore, has the functions and
attributions assigned to it by Article 41 of the Convention, in
its task "of promoting the observance
and defense of human rights."
- Mexico contracted the commitment to respect and
guarantee the exercise of the rights listed
in the Convention when it ratified it on April 3, 1982, and as
regards the exercise of political rights,
only expressed the reservation referring to the right to vote and
association with political aims
applicable to clergymen, according to provisions of Article 130
of the Constitution of the State.
When it contracted the obligations derived from the Convention,
it also accepted that the
Inter-American Commission exercise the functions and attributions
conferred by the Convention; no
reservations or limitations were recorded in the instruments
deposited when the Convention was
ratified.
- With regard to the Mexican Government's new
interpretation, contained in its comments of
the Commission's report, which is based on a distinction between
the right to vote and to be elected,
as a right of immediate enforceability, and the right to
legitimate elections, as a progressively
achievable right, it should be pointed out that according to
Article 23.1.b of the Convention the right
of citizens to vote and to be elected of necessity entails the
question of the method or requirements
for making that right a reality, an election, the characteristics
of which give explicit validity to that
rule. An electoral act is required in order to give practical
effect to the abstract right to vote and to
be elected, which is the reason why the Convention spells out the
characteristics that elections should
have.
- From a juridical standpoint, several observations are
in order. First of all, it should be pointed
out that in order for this interpretive distinction between
individual rights of immediate enforceability
(the right to vote and to be elected) and collective rights to be
developed progressively (the right to
elections with particular characteristics) to have validity in
the cases under consideration, it would
have been necessary for Mexico, at one time or another, to have
advanced this interpretation of the
article and to have stated this distinction unequivocally.
- No reference to such a distinction can be found in the
Preliminary Draft Comments of the
Government of Mexico on the Draft Convention (see Proceedings of
the Specialized Inter-American
Conference on Human Rights, 1969, page 257 of the Spanish text.)
Neither does any such
interpretation appear in the minutes (Actas), where it is found
that, in fact, the present formulation
of Article 23.1.b was approved with the affirmative vote of the
highly qualified delegation sent by
Mexico to that Conference (see page 257, op. cit.)
No interpretive statement to that effect appears
to have been made at the time of Mexico's signature of the
Convention or during its ratification.
- From the normative point of view, the structure of
Article 23.1.b makes reference to certain
features that should be present in order for the right to be
recognized to be valid in practice. Indeed,
any mention of the right to vote and to be elected would be mere
rhetoric if unaccompanied by a
precisely described set of characteristics that the elections are
required to meet. If the provision were
not considered in its entirety, the interpretation now being
advanced by the Government of Mexico
would result in outright suppression of the enjoyment and exercise
of political rights. Mexico would
thereby be violating Article 29.a. (Restrictions regarding
Interpretation) of the Convention.
- The comments also contain the argument that "... the
need for the elections to be legitimate
imposes upon the State an obligation to act: To progressively
develop, in accordance with
circumstances and conditions in each country, the guarantee that
the voters may freely express their
will." This argument would condition the existence of human
rights on "the circumstances and
situation of each country" leaving the whole legal system in a
precarious state.
- With respect to the argument contained in the Mexican
Government's comments which holds
that any opinion issued by the Commission on an electoral process
on the basis of individual
complaints constitutes a violation of the principle of
nonintervention, it should be stated here once
again that the Mexican State, by virtue of having signed and
ratified the Convention, has consented
to allow certain aspects of its internal jurisdiction to be a
subject of judgments on the part of the
organs instituted to protect the rights and guarantees recognized
by the Convention. If this is true
whenever a State signs any international instrument, it is even
truer when the instrument is a treaty
that recognizes the inalienable rights of man, which, antedate
and are paramount over those of the
State.
- Moreover, as stated in Article 18 of the OAS Charter,
the principle of nonintervention is a rule
of conduct that governs the acts of States or groups of States.
All of the normative precedents
developed within the inter-American system (Seventh International
Conference of American States,
Montevideo, 1933, and Inter-American Conference for the
Strengthening of Peace, Buenos Aires,
1936, Additional Protocol on Nonintervention), have taken that
approach. The Inter-American
Juridical Committee, in its "Draft Instrument" on cases of
violations of the principle of
nonintervention (1972), indicated that one of the basic criteria
followed preparing it was that "only
States can be subjects of intervention."
- It should be noted further that in 1972, at its second
session, the General Assembly of the
Organization of American States adopted a resolution entitled
"Strengthening of the Principles of
Nonintervention and the Self-determination of Peoples and
Measures to Guarantee their Observance."
This resolution reaffirms the concept that only States can be
subjects of intervention. It is relevant
to quote the text of the following paragraph of that resolution:
All States shall respect the right of self-determination and
independence of peoples
and nations, to be freely exercised without any foreign pressure
and with absolute
respect for human rights and fundamental freedoms.
- The principle of nonintervention is therefore linked to
the right of peoples to
self-determination and independence and is described as a
principle to be practiced in suitable
harmony with human rights and fundamental freedoms. This
important interrelation of principles of
international law is formalized as a rule of law in Article 16 of
the OAS Charter, which reads as
follows:
Each State has the right to develop its cultural, political,
and economic life freely and
naturally. In this free development, the State shall respect the
rights of individuals and
the principles of universal morality.
- According to this rule, the right of the State to
develop its internal life freely has a counterpart
in its obligation to respect the rights of individuals. And in
inter-American law these rights are
formally recognized in the American Convention on Human Rights.
The correct interpretation of the
principle of nonintervention is, therefore, one based on
protecting the right of States to
self-determination provided that right is exercised in a manner
consistent with respect for the rights
of individuals.
- The above leads to the conclusion that the Commission,
based on its regulatory instruments,
is empowered to examine and evaluate the degree to which the
internal legislation of the State party
guarantees or protects the rights stipulated in the Convention
and their adequate exercise and,
obviously, among these, political rights. The IACHR is also
empowered to verify, with respect to
these rights, if the holding of periodic, authentic elections,
with universal, equal, and secret suffrage
takes place, within the framework of the necessary guarantees so
that the results represent the
popular will, including the possibility that the voters could, if
necessary, effectively appeal against an
electoral process that they consider fraudulent, defective, and
irregular or that ignores the "right to
access, under general conditions of equality, to the public
functions of their country."
- It is understood beyond a shadow of a doubt that, in
the light of general international law and
the terms of the Convention, that it is a multilateral treaty,
and that the Inter-American Commission
has jurisdiction to hear and examine complaints or claims on
matters affecting rights protected by the
Convention (Art. 44). Nevertheless, and since the Government of
Mexico has questioned said
jurisdiction, in its observations to the denunciation that arose
from case 9828, it is important to state
the following:
-
The Vienna Convention (1969) on the Law of Treaties
establishes, in connection with
the application of the international law norm pacta
sunt servanda, that "every treaty in effect binds
the parties and must be observed by them in good faith."
- In the Commission's opinion we can distinguish in this
precept, the proposition that
the fact that the treaty is binding does not mean that the same
establishes a norm that can point out
obligations and rights to the contracting parties. Therefore,
the treaty has the quality of applying and
at the same time creating law. It applies the law, because when
a treaty is signed the general rule of
international law pacta sunt servanda is applied, and it
creates law because it establishes rights and
duties which did not exist before the treaty, that begin to grow
as a result of the treaty and its
application by each one of the parties.
- From the aforementioned it can easily be deduced that
each State party to the
American Convention on Human Rights contracted, when it ratified
or acceded to the Convention,
the obligation of recognizing the competence and jurisdiction of
the means of protection that the
Convention itself establishes to "promote the observance and
defense of human rights," and one of
those means of protection is the IACHR.
- The duty to refrain from doing or acting negatively
with respect to the application of
the treaty can also be deduced from the context of this
obligation. That is, what the International
Law Commission defined when it stated "that every party must
abstain from executing acts aimed at
frustrating the aim and objective of the treaty" (Report of the
International Law Commission:
OAS/Ser.Q/II.11 (A), CJI-18 (A), pages 44-45) that, as the
Inter-American Court of Human Rights
states, when referring to the aim and objective of the American
Convention, "it is not the reciprocal
exchange of rights between a limited number of States, but the
protection of the rights of all human
beings in America, notwithstanding their nationality" (Advisory
Opinion on the Effects of
Reservations -OC-2/82, p. 43).
- Moreover, it is deduced that according to the Vienna
Convention (Art. 29), that the
American Convention is applicable in all the territory of the
United States of Mexico because "a treaty
is obligatory for each one of the parties with respect to the
totality of its territory, except if a different
intention is inferred from it or is obvious in another way."
(Vienna Convention, doc. CJI-18, cit. p.
14). So, the provisions of the Convention are applicable in all
the States of the Mexican Union as
"supreme law of all the Union," in the spirit of Article 133 of
the Mexican Constitution, because
Mexico ratified the American Convention without amendments or
interpretations applicable in this
matter. Therefore, what is stated by Article 28 of the federal
clause is applicable.
- The pertinent matter for the protection of human rights
in the inter-American system
is regulated, for the States parties, by the decision of the
governments themselves of the member
States of the OAS, which approved and put in effect the American
Convention on Human Rights,
among them the Government of Mexico, through a formal
source of international law such as the
Convention.
- Therefore, as a matter of law every right related to
this subject is not presently reserved, in
an exclusive fashion, to the jurisdiction of the member States of
the OAS, at most those who have
ratified the Convention, because this is the situation that
creates the present state of hemispheric
international relations.
- From what has been discussed thus far, Mexico, when it
ratified the American Convention on
Human Rights, committed itself to respect and guarantee the
exercise of the political rights described
or defined in Article 23 of the aforementioned treaty which
includes the right to vote in authentic
elections, and adopt legislation that will lead to that
objective, as stated in Article 2. It also
committed itself to provide an effective remedy for those who
believe that that right has been
affected, under Article 25 of the Convention and to guarantee the
right of every person to be heard
by a competent, independent, and impartial judge or tribunal for
the determination of rights and
obligations. In order to determine the adequacy of the behaviour
of the Mexican government with
respect to obligations contracted under the American Convention,
said government has also accepted
that the Inter-American Commission on Human Rights systematically
give opinions on such matters,
exercising the powers granted to it by said international
instrument, without said powers having ever
been questioned.
5. Issues in this case
- The three denunciations hold that the elections held
were not authentic because they did not
adequately represent the popular. As for the specific
allegations, the Commission has decided to
refrain from making any reference to the de facto
situations alleged in these cases because the validity
of some of the allegations would have to rest on a presence of
the Commission during the electoral
campaign and at the time of the voting. To this should be added
the fact that the Commission did not
engage in any exhaustive monitoring of the situation in Mexico,
as had done in certain cases in which
it had issued judgments on electoral processes and even made
inspection visits to some of the
countries concerned. Accordingly, it neither accepts nor denies
the veracity of the facts as alleged.
This precludes the possibility that the Commission comment on the
origin of the mandate of the
officials chosen in these elections. At present, this is also
the intention of the claimants.
- In relation with the internal remedies and guarantees
in Mexico, the matter to be examined
is whether Mexican law offers adequate means or a simple and
quick remedy or of "any other
effective remedy before competent judges or independent and
impartial courts" that protect those
who petition against "acts that violate their fundamental
rights," as is the case with political rights.
The Commission has been able to perceive that no such remedy do
exist in Mexico.
- In view of the aforementioned and pursuant to
provisions in Article 41, letter c of the
Convention, which grants the power to make "recommendations, when
appropriate, to the
governments of member States in order that they adopt progressive
measures in favor of human rights
within the framework of their internal laws and their
constitutional precepts" and, bearing in mind
moreover, the provisions of Article 2 of the Convention, the
Commission deems it advisable to
remind the Government of Mexico of its duty to adopt measures of
internal law, in accordance with
its constitutional procedures and the provisions of the
Convention, whether legislative or of another
character, necessary to make effective the rights and liberties
which the Convention recognizes.
- The Commission must remind the Government of Mexico at
this time that it duty is to assure
the free and full exercise of political rights and judicial
protection in accordance with Article 1.1 of
the American Convention. In this regard, the Commission must
mention that it has been informed
that there is underway an active process of reform of the
electoral laws. The Commission hopes that
these reforms will lead to the adoption of standards that will
adequately protect the exercise of
political rights and create a rapid and effective procedure
assuring the protection of the same. The
Commission places itself at the disposal of the Government of
Mexico to cooperate with it in all
matters that might lead to the achievement of these ends in the
same way that it has so offered itself
to other Governments. The Commission also requests that the
Government of Mexico send it
information relating to the electoral reform process currently
underway, in accordance with Article
43 of the American Convention on Human Rights.
[ Inter-American Human Rights
Database ]
|