On September 6 2002, the Judicial Branch of the National Supreme Court of Justice rejected the Constitutional Controversies that were filed against the so named “Bartlett-Cevallos Law” concerning the rights and culture of the indigenous people.  This has provoked strong reactions from many different social sectors, while the EZLN continues to keep silent for now.  But, just what was it that happened?

What does it mean?  Let’s remember.  In February of 1996’ the federal government, specifically the Legislative Branch, signed the San Andreas Accords concerning Table I` “Indigenous Rights and Culture.” Then began a long process of dialogue and negotiation, and in the midst of lies and tricks by the federal government, as well as greater militarization and paramilitarization, the formulation of constitutional reforms reflecting said accords remained pending.  That same year, the Commission of Concordance and Peace (COCOPA), -  representatives of the Executive Branch made up of senators and federal deputies as well as legislators from Chiapas - formulated a proposal that was to be respected by both sides.  This constitutional initiative was then called the “COCOPA Law.”

Nevertheless, the Executive Branch in the hands of then President Ernesto Zedillo retracted its word and did not accept the consensus (of the Executive Branch and COCOPA).  He made more than thirty complaints about the COCOPA Law. Then he reduced the same to four, feigning political goodwill about business that had already been agreed upon and signed.  Since then, the talks have been broken off.  The EZLN and many sectors of Mexican society demanded that the federal government keep its word. (For details about this process you can go to www.ciepac.org and click on the subject heading Proceso de Paz).  Other political parties drew up their own proposals about the law regarding indigenous rights and culture intending to skip the process of consultation, negotiation and dialogue with civil society.  Six years have passed while violence that has only gotten worse and is marked by increasing harassment and violence by paramilitary groups.

Then the presidential candidate of the National Action Party (PAN), as a means of capitalizing on the popular discontent (that had built up against the Institutional Revolutionary Party (PRI)which had held presidential power for more than 70 years) promised to take up the COCOPA Law again in order to complete the San Andreas Accords.  Having won the presidency, Vincente Fox sent the COCOPA Law to Congress on December 5, 2000. The Legislature rejected the law.  The PAN, holding the congressional majority and now a political party, formed an alliance with PRI.  Fox tried to stay on good terms with society.  Thus he sold out the promise he had made to the Mexican people and could pass on the blame to the lawmakers. Meanwhile his party, from another front, once more denied the compliance with the San Andreas Accords and began the creation of a monstrous counter-reform in order to eliminate indigenous constitutional rights

In March of 2001, senators Bartlett of the PRI and Cevallos of the PAN began to push another constitutional initiative very different from the COCOPA Law named the Bartlett-Cevallos Law.  This proposed constitutional reform concerning indigenous rights and culture occurred in the context of Fox’s pushing of the Plan Puebla-Panama and the Free Trade Area of the Americas (FTAA), as well as a vigorous labor reform.  The Bartlett-Cevallos Law proposed adding second and third paragraphs to article 1, reforming article 2, eliminating the first paragraph of article 4, adding a sixth paragraph to article 18, and a final paragraph to the third faction of article 115 of the Political Constitution of the United States of Mexico.  Thus the entire process of negotiations with the EZLN at San Andreas would end as a joke!

The EZLN anticipated this scenario and the Commandantes and Subcommandante Marcos, in an unexpected move, organized a march to Mexico City in February and March, which would end in the Congress to appeal for the approval of the COCOPA Law.  The support from Mexican society was impressive.  Meanwhile, the Legislative Branch refused to receive or attend to the indigenous people on any public platform and the legislators of COCOPA remained in a vegetative state.  Vincente Fox, just like Pontius Pilate, washed his hands before the crowd that demanded the completion of the San Andreas Accords.

In spite of the objections of Mexican society, Congress approved the Bartlett-Cevallos Law on April 24, 2001, which was really a counter reform.  The Legislative Branch turned its back on dialogue and negotiation and once again showed the legitimate reasons for the indigenous uprising in 1994.  What’s more a few legislators blocked a process that took years and granted the Mexican people the right to decide what is suitable for the more than 10 million indigenous citizens. They drafted and introduced to the country a proposal surrounded with lies and deception.

The following step aimed at completing this betrayal would consist of the legislative bodies of each state approving by a majority this legal initiative.  PAN and PRI accelerated the process so that each state would meet with its legislators and would vote as soon as possible. On July 18^th the National Congress  decided that the voting had ended. But it was in these three months, April through July of 2001, that the irregularities regarding voting for or against the Bartlett-Cevallos Law surfaced in the majority of the state Congresses of the country.  Of the 31 states of the republic:

1)       Two states,Yucatan and Tamaulipas, seeing that their voting would not change the result, saved themselves the political cost of such a decision.  Nevertheless, this was illegal.  It is not possible to have a final count until absolutely all the state congresses have voted in a legal manner.

2)       The nine local congresses of the states with the majority of Mexico’s indigenous population rejected the Bartlett-Cevallos Law.  They are:  Guerrero, Hidalgo, San Luis Potosi, Baja California Sur, Chiapas, Estado de Mexico, Oaxaca, Sinaloa, and Zacatecas.

3)       Nineteen states approved the Bartlett-Cevallos Law: Veracruz, Puebla, Colima, Aguascalientes, Queretaro, Campeche, Baja California Norte, Guanajuato, Durango, Qunitana Roo, Coahuila, Jalisco, Sonora, Tlaxcala, Nuevo Leon, Tabasco, Nayarit, Michoacan and Chihuahua.  Nevertheless, among these:

a)       Eight state Congresses did not vote with the required number of representatives and for this reason ought to have been declared invalid.  They were the Congresses of Jalisco, Aguascalientes, Queretaro, Sonora, Tabasco, Coahuila, Michoacan and Quintana Roo.

b)       Six Congresses did not send a decree to the federation, which also would have invalidated the vote.

c)       Thirteen state Congresses voted properly and sent their approval to the National Congress but the approval of 50% plus one that is required for a majority and because that proceeds a constitutional modification and 16 state Congresses did not come through, this also ought to have been declared invalid.  (These results can be found at www.ciepac.org under the title Boletines 2001).

In spite of these irregularities, the alliance of PRI and PAN hurried to make the vote count legal and final on July 18, 2001.  Then President Fox published the law against indigenous reform in the Official Daily Journal of the Federation on August 14 of the same year.  And it was in this lapse of the following 30 days that there was an opportunity to present legal objections to the decision.

Then, what happened?  Without being specialists in the arena, we will dare to give an explanation that we mean to be simple.  There exist only three methods to appeal violations of the Constitution, and they were all used as soon as the Cevallos-Bartlett Law was officially published. One is for people, one is for political parties and one is for the authorities.

1) Protective Judgment:  is for the people when a new law is thought to violate their        individual rights.  This course of action was used by the raramuris of Chihuahua, the indigenous nahuas of Mexico City, the purepechas of Michoacan and the indigenous of Chiapas.  They were all thrown out for being allegedly inadmissible.  Besides, it raised, among other questions, “How, in the meantime, can a law be applied to millions of people if a single person would be exempt from it?” Nevertheless, this was a historical fact.  Since the creation of the constitution in 1917, a protective judgment has never been lodged against a constitutional reform.

2)       Unconstitutional Action:  only political parties or minorities of the legislative

congresses can use this when they complain that a new law contradicts other laws or the Constitution.  This appeal was promoted by biased factions of the state Congresses of Tabasco, Tlaxcala and Oaxaca, among others, that were also thrown out. This, too was an historical fact since this appeal was created in 1994 in the context of the Free Trade Treaty with North America (TLCAN) and at the beginning of the end of PRI domination,  Thus, one recourse remains:

3) Constitutional Controversy:  only authorities at some level of government (federal, state or municipal) can present this in order to invalidate some general rule (laws or treaties) when it violates or contradicts other laws, the Constitution itself or when  it invades the province of another level of government.  Regarding this course of action, 339 objections of municipal governments from Puebla, Oaxaca, Veracurz, Tabasco, Michoacan, Chiapas, Guerrero, Hidalgo and Morelos were lodged..  Most of them were turned down as inadmissible arguments being that the person making the charge was not appropriate, that the charge was  not made in time or in the correct manner, among other pretexts.  But it would have been enough to agre with a single complaint to achieve th objective of those who made this appeal.  Nevertheless, the Controversies did not challenge the content of the Bartlett-Cevallos Law, but rather the method by which said reform was carried out.  This is also an historical fact since a Constitutional Controversy had never been presented in the country, let alone 300 at a single time.  This course of action wasn’t even used when constitutional article 27 was changed to privatize common land.

Who decides?  Only the National Supreme Court of Justice, the Judicial Branch and the highest organ of justice in the country can receive and resolve a Constitutional Controversy. Fortunately for the ministers of the SCJN, there is no legally defined period for settling any objection that is submitted on account of what it might offer to political times ad interests. The present ministers will remain in office for 15 years, and they began their term in 1995. President Ernesto Zedillo removed the previous ministers from office and proposed to the National Congress that the new appointments would be appropriate for the demands of the TLCAN, Plan Puebla-Panama, the ALCA and other commercial agreements. So the judges elected by a PRI government now guarantee the continuity of the PAN government. And it is here that the power of the state comes full circle and the third betrayal is completed – this time by the Judicial Branch.

The person who makes the objection can present 3 types of proofs:  documents, affidavits and expert testimony.  In these cases, the SCJN denied the affidavits and expert testimonies as invalid and only accepted some of the documents.  Then the SCJN must render some kind of decision.  Its decision can be one of three types:

1)        JUDICIAL STAY:  Annuls the claim because the party that makes the accusation was not named to do it or has not correctly fulfilled the conditions (necessary for doing it) or if the person who lodges the complaint has no real reason (for doing so).

2)        ACCEPTANCE:  Declares that the Constitution has been violated and the person presenting the objection is right.

3)        REFUSAL: Finds that the Constitution has not been violated by the act or proposed law and the person lodging the complaint is wrong.

If the SCJN believes the person lodging the complaint is correct, the magistrates ought to indicate where the  (constitutional) process can be recovered starting from the moment the Constitution was violated.  The effects of the judgments are on two levels:  1) GENERAL:  that affects everyone but only when it prejudices someone against a general rule; between the Executive and Legislative Branches; between powers of the states; or between two state organizations of the Distrito Federal.  2) AMONG THE PARTIES:  that affects only municipalities or two entities of the country.

In July of 2002, when the SCJN still had not rendered a judgment, the Office of Representation for the Development of the Indigenous Peoples and the National Indigenous Institute published a notice calling for a national convocation entitled:” Indigenous Peoples, Public Policy and Institutional Reform.”  Among it’s aims would be “revising, defining, and operating new public policies and governmental actions that would stimulate a completely new institutional mentality in a pluricultural State. . . moving toward the establishment of  a new relationship between the indigenous peoples and communities and State and society as a whole. . .and realizing changes within the INI.”  In other words, another joke.

Then a year after the SCJN provided a preface for the resolution concerning the Constitutional arguments, it declared that it did not have the competence to resolve the issues. So the counter-reform remains as is and they pretend everything ended there.  That is, one more joke.

CONCLUSION:

In spite of what society wants, the Executive, Legislative and Judicial Branches of government violated the laws they wanted and the political accords.  They made a mockery of the country and the Mexican people remain hostages to a State structure in the hands of interests having nothing to do with the impoverished majority. The structure of the State and all its power is (directed) against society and the indigenous peoples.

The Executive, Legislative and Judicial Branches of government have closed the doors to peace.  Any constitutional, institutional and legal ways have been shut up.  In doing so, the government eliminates both the credibility of the path of dialogue and negotiation that it never completed and also the political-electoral process itself in that the political parties and the COCOPA never responded in kind to the historic challenge demanded by the Mexican people. Basically, they ignored the indigenous peoples.  The use of political mobilization as a means of pressure has been systematically repressed or simply ignored.  The doors are bolted and locked up tight.  After 8years, it seems the government only pretended to listen and devoted most of its energy to managing the conflict with manipulation, deception, falsehood and repression.  In the face of this lack of democracy, the state imposes its own way of coercion, decrees and taxes through lies, blackmail and deceit.  The submission of national sovereignty to policies from Washington is at the expense of the indigenous people.  Affairs are transacted without attending to their needs but rather those of “big business.” Not only do they not negotiate with the people, they don’t even bother to pretend that there are even consultations.

Independent of the constitutional objections, the COCOPA Law was never approved because it is a huge threat to transnational interests in the face of the integration of PPP and FTAA.  Three factors are at stake:  the subject, the object and territory.  So are the indigenous people and their territorial autonomy concerning strategic resources defined in the face of an expanding wave of privatization.  Access to gas, oil, water, the genetic bank of biodiversity and various minerals, among other key resources of interest to the transnationals, would not be granted to the indigenous peoples as territorial rights because that would threaten their (transnational) investments.  Collective rights and ownership threaten private ownership.  Public well-being threatens private investment.  For this reason, the right to own as well as the use of these natural resources; the indigenous people as the true inheritors of this right with their autonomy and their own territory and the collective exploitation of the land would have eliminated it from the map.  In other words, the indigenous people ought to assimilate and lose themselves as cheap labor in the world of private capital.

The decision of the SCJN comes with political overtones.  The SCJN drew out the process for more than a year.  It published it’s decision in the midst of a very grave political climate in Chiapas when paramilitary groups were killing and also displacing more Zapatista support bases.

In order to avoid clouding the moment for President Fox, the decision of the SCJN came in the middle of an escalation of violence after the victory of the campesinos at Atenco (concerning the megaproject of a new international airport) and the Presidential Report of September 1^st. But he had to remove a resolution before the ordinary session of Congress that would have meant the beginning of an analysis of the presidential report and the appearances of the secretaries of state before the legislators. Other pending congressional issues between September and December were the following: the proposal of the law of incomes and expenses, electrical reform, the Pemex frauds and outrageous acts of the PRI legislators accused of corruption. Electoral campaigns were also underway in preparation for the congressional elections the following year. These were among the “red hot” themes before the lawmakers.

The government never sought any advice about approving the Bartlett-Cevallos Law which itself was the fruit of the process of negotiations about the COCOPA Law.  Along the same lines, the indigenous people were never consulted about the PPP, FTAA or the free trade treaties which have buried the countryside in misery. Agreement 169 of the ILO which Mexico had signed was violated.  Its article 6 states ”1. In applying the provisions of the present agreement, the governments ought to a) consult the interested parties by means of the appropriate methods and in particular, through their representative institutions, each time legislative or administrative measures are anticipated liable to affect them directly; b) establish the means through which the interested people can participate freely, atleast in the same manner as the other sectors of the population, and at all levels in the adoption of decisions in elected institutions and administrative organs or any kind responsible for the policies and programs that concern them; c) to establish resources for the complete development of the institutions and initiatives of these peoples and inappropriate cases to give the options necessary for this end. 2) The proposals finalized in the application of this agreement ought to take place in good faith and a manner appropriate to the circumstances with the purpose of coming to an accord or achieving consent about the proposed measures.”

If the doors are bolted against them, who has the moral authority to judge the road the indigenous peoples choose in their legitimate search to obtain their autonomy, their development and the full respects for their rights??

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