Human Rights in Shades of Gray
Mexican Constitutional Reform Raises Troubling Issues
BY Trish Bailey de Arceo
June 19-July 2, 2011 Issue | Posted 6/10/11 at 5:47 PM
MEXICO CITY — Mexican President Felipe Calderón June 3 promulgated historic amendments to the Mexican Constitution, requiring the country to abide by the human-rights standards set forth in international treaties.
Although the reform was hailed by senators, congressmen and the president himself as an important step forward, others point to troubling ambiguities that could lend themselves to the promotion of gender ideologies and manipulation of the law.
The text of the proposed constitutional amendment, prepared by a group of academics and non-governmental organization representatives, was unanimously approved by the senate on March 8 and earned the necessary majority of state congress votes on May 18 before its official promulgation.
The proposal’s swift passage into law reflects Mexican legislators’ desire to shore up the protection of individual citizens’ rights, which are all too often trampled in a society marred by poverty, exploitation and corruption. Raising human rights to a status on par with the constitution as the supreme law of the land was a way to provide them with a stronger foundation. It was also an opportunity to bring Mexico up to speed with the international community’s standards.
In spite of the many positive results of the reform — reinforced rights to food, water, work; freedom of speech, conscience and religion; and stronger punishments for human slavery and exploitation, to name just a few — there are also signs of an ideological influence coupled with a disturbing ambiguity in the definition of terms.
One of the fundamental weaknesses of the reform, legal experts have observed, is the way it fails to define the term “human right.” At the same time, it requires Mexican legislators and jurists to uphold all of the rights listed in the many international treaties Mexico has signed. If a local or federal authority fails to uphold or promote one of the rights in an international treaty, the National Human Rights Commission has the power to investigate and punish the violation. Previously, this power was reserved for the nation’s supreme court.
This ambiguity in terms, coupled with the power to impose strong sanctions, is an abuse waiting to happen, legal experts say.
Jorge Adame Goddard, an arbitrator for the North American Free Trade Agreement and a law professor at the Universidad Panamerica, said, “Since there is no clear concept of what a ‘human right’ is, any right in favor of individual persons in the treaties could be taken as a constitutional right,” he said.
The result, he argued, would be an increase in litigation and an open door to manipulation of the law.
Allows Judges to Make Laws?
Piero Tozzi, senior legal counsel with the Alliance Defense Fund, noted that this manipulation could be carried out from the judge’s bench, especially since the new text of the constitution calls for a “broad application” of human rights.
“As it does not specify which ‘human rights’ are to be incorporated and elevated on par with the constitution, while instructing that these undefined rights are to be given broad application, it potentially gives a judge latitude in expanding or even fabricating rights beyond what was contemplated when treaties were drafted and ratified,” he said.
In fact, the revised text of the constitution states that one of the guiding principles for interpreting human rights is “progressiveness,” the notion that our understanding of human rights can change and evolve over time. It is perhaps not too much of a stretch to imagine that actions or inclinations that are considered today as a disorder or a crime could one day be given the protected status of a human right.
Tozzi observed that this possibility becomes particularly troubling in light of an addition to the first article of the revised constitution: the right to non-discrimination based on “sexual preference.”
“The reform sets up a potential conflict with vague non-discrimination rights based on ‘sexual preference,’ with the personal predilection of the individual judge perhaps being the deciding factor,” he said.
The inclusion of respect for “sexual preferences” in the first article of the revised Mexican constitution triggered a reaction from Cardinal Juan Sandoval Íñiguez, the outspoken archbishop of Guadalajara.
In an article published in the archdiocesan newspaper, Cardinal Sandoval stated that the term “sexual preference” is not included “in any international treaty or in any other constitution.” Yet it appears in the amended Mexican constitution.
“By protecting sexual preferences, the door is opened to all kinds of irregularities and aberrations, because there are very aberrant sexual preferences, such as pedophilia and zoophilia, among others. Thus, practices like the so-called ‘marriage’ between same-sex persons will become, so to speak, consecrated by this reform,” he said.
Adame stated that on a purely juridical level, the inclusion of the term “sexual preference” was unnecessary.
“Introducing this term into the constitution is simply an ideological position by which they are attempting to impose the ideology of gender on the entire Mexican population. This ideology considers that sexual difference is not a natural biological difference, but the result of a personal option or ‘preference,’” he said.
He went on to observe that the inclusion of this term in the constitution will mean that when students are taught about human rights, “sexual preferences” will be included in the package “as if they were points of view commonly accepted by society.”
Objections to the inclusion of sexual-preference rights and other more technical issues were overcome in state congress debates, with the media reporting afterwards that “right reason prevailed.”
The vast majority of senators and congressmen have welcomed the reform, highlighting the fact that it is a significant advance for the country, which had been lagging behind international human-rights standards.
In an official statement at the promulgation of the reform, Calderón said, “Mexico has a firm commitment to protecting fundamental rights,” noting that the reform is “the widest expansion of citizens’ rights that has happened in decades.”
Likewise, the United Nations’ Office of the High Commissioner for Human Rights in Mexico praised the reform as Mexico’s most important achievement in the field in the past 25 years.
Trish Bailey de Arceo writes from Xalapa, Veracruz, Mexico.
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