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Table of contents
I.Introduction………………………………………………………………...33
1.Legal Instruments that Control the State of Emergency in Mexico………..34
2.The Doctrine on Constitutional Dictatorship and the State of Emergency..37
II.Research Methods…………………………………………………………39
1.Empirical Dimension…………………………………………………….…39
2.Legal Dimension………………………………………………………..…41
III.The case of Michoacán……………………………………………………41
IV.The case of Guerrero……………………………………………………..49
V.Other cases…………………………………………………………………53
VI.Analysis of the Legal feasilility of a declaration of state of emergency in Mexico………………………………………………………...………55
VII.Proposing typologies of emergency and vigilantes in Mexico….58
VIII.The current debate on the state of emergency in Michoacán, Guerrero and other troubled regions in Mexico………………………………..59
IX.Final considerations………………………………………………62
I.Introduction
The academic literature on the state of emergency is vast, since this is an issue that has been researched by political theorists, political scientists and legal scholars alike, especially since the terrorist attacks on the Twin Towers in New York in 2001.1 Part of this academic literature deals with the conditions, imposed by the respective Constitutional Law and the International Human Rights Law (IHRL), which a declaration of state of emergency should formally fulfil in order to be considered valid.2
Conversely, other literature has focused on thoroughly understanding the principles that a declaration of state of emergency should respect in order to properly reconcile individual rights with community interests.3 On the other side, other authors have developed insightful theories on human rights in order to better explain the proper goals, scope and limits, which a state of emergency should hold, so that the relative state can guarantee effectively a ‘secure and equal freedom’ for the people.4
There are even other scholars who, based on comparative law, have proposed typologies of emergency powers classifying coherently the strategies in order to restore constitutional order, with the least human rights violations possible.5
Nevertheless, the common ground of the academic literature on the state of emergency is that scholarly works increasingly enrich the criteria to better distinguish an exceptional state of affairs from an ordinary one: No matter how serious this latter might seem, it must meet a specific benchmark to be deemed a public emergency.6
With this academic background, if we were based on the motto that a true state entails the satisfactory performance of all its institutions, as well as the substantive accomplishment of their aims, we would question whether these conditions were or not actually present in specific regions of Mexico, in the period of 2009-2014, and we would also doubt that the constitutional rule of law was indeed enforced then, throughout the Mexican territory.
This inquiry stems from the fact that, in this period, organized crime increasingly committed unlawful actions against the very same Mexican state, which were aimed at weakening it as much as possible to subdue it and prevent the constitutional enforcement of the rule of law, thus leading, step by step, specific regions of Mexico to a de facto state of emergency.
Still, how could we understand a state of emergency? It could be under- stood as that situation in which the (constitutional) rule of law is not appropriate, solid or powerful enough to solve a circumstance that threatens the viability of the state. This state of affairs could result from a natural disaster, state of war, internal revolt or any other circumstance that excels the standard power of the state to be solved through ordinary means.7
1.Legal Instruments that Control the State of Emergency in Mexico
At the national level in Mexico, the declaration of state of emergency is specifically regulated by the Article 29 of the Mexican Constitution, which establishes an explicit procedure for this declaration to be validly made. In this procedure, a plurality of authorities participate,8 with the goal of keeping in check this extraordinary power that is granted, in the first place, to the Mexican President. This declaration could include two kinds of actions to surmount the specific emergency: a) the suspension of constitutional guarantees, and b) the enactment of special laws to overcome it.
Nevertheless, this declaration could be challenged through a constitutional trial (Juicio Constitucional), and the derived judicial review would permit the Supreme Court of Justice of the Nation (SCJN, Suprema Corte de Justicia de la Nación) to reflect on both the procedural and the substantial aspects of the suspension of constitutional guarantees, so that it fully adheres to what is commanded by the Mexican Constitution.
On the other hand, the International Covenant on Civil and Political Rights (ICCPR) has established several restrictions to any state that intends to suspend constitutional guarantees and enact emergency laws to overcome a distress situation. These restrictions are mainly aimed at protecting the human rights and at impeding the abuse of any state when dealing with an emergency.9
Additionally, the American Convention on Human Rights (ACHR) explicitly forbids that some constitutional guarantees could be suspended, no matter the seriousness of the emergency that a state confronts.10 Furthermore, the formal declaration of a state of emergency should comply with the following requirements to become valid: a) competent subject,11b) valid cause12, c) object,13d) proper notice,14 and e) conduct.15
On top of these requirements, there are more derived from the ACHR, which control the suspension of human rights during an emergency: a) necessity,16b) temporality,17c) proportionality,18d) non-discrimination,19e) compatibility with other international obligations,20 and f) adherence to domestic law.21
As it was stated above, these restrictions established by different instruments of the International Human Rights Law are aimed mainly at preventing any state from misusing emergency powers. This goal could be understandable in the case of Mexico, since, given the current weakness of its rule of law, a suspension of human rights could be implemented to achieve other policy aims, instead of seeking to overcome the relative public emergency.22
On the other hand, these international legal instruments can enhance the “ex post” controls of a formal declaration of state of emergency in our country, so that the Mexican state might become more answerable to the international community of its right use or misuse.23
2.The Doctrine on Constitutional Dictatorship and the State of Emergency
Nonetheless, the doctrine on constitutional dictatorship advanced by Clinton Rossiter has established eleven necessary conditions so that a declaration of state of emergency fulfils its aim of preserving the constitutional order.24 These eleven conditions are also aimed at impeding the abuse of emergency powers, by any constitutional dictator, who may use them to boost a long-term authoritarian regime, by means of the very same distress that his own country could be enduring.
Based on this conceptual framework, it is possible to argue that, at some point, in the period of 2009-2014, some constitutional guarantees could have been suspended, so that the Mexican state would have worked out more energetically the distress that different regions were suffering due to the calamitous activity of organized crime.
The reality was that the constitutional rule of law in Mexico had been debilitated by organized crime, to such a degree, that it had become incapable of preserving the human rights of millions of people. In fact, the infringements to fundamental rights, carried out by organized crime across this country and in this period, were far more serious than any damage that Germany, Italy and Japan had brought about to this sovereign state during the Second World War, when Mexico declared its first state of emergency after the Mexican Revolution.
Nevertheless, Clinton Rossiter’s doctrine on Constitutional Dictatorship is not the only conceptual framework that can support the convenience of a derogation of non-peremptory human rights norms, in those regions of Mexico where organized crime has caused calamities.
Another relevant normative theory on this subject is the legal doctrine that regards the state as fiduciary of the duty of protecting its people’s basic rights. Based on this established position, the main duty of a sovereign state is to preserve, on behalf of all its subjects, “secure and equal freedom for all”, whatever the means might be necessary for this end goal.25
Consequently, in accordance with this conceptual framework, emergency powers should be esteemed as the last resort of a sovereign state in order to fulfill this mission, which entails not only the achievement of “secure and equal freedom for all”, but also the guaranty of enjoyment of all human rights.26
Moreover, based on this insightful theoretical perspective, the formal suspension of non-peremptory human rights during a public emergency may not only be a legitimate faculty of a sovereign state, but also its grave duty so that the human security of all its citizens may be completely assured.27
II.Research Methods
Since the main argument of the present article is that from 2009 to 2014 Michoacán, Guerrero and other regions of Mexico went through such a constitutional crisis that a formal declaration of emergency would have been completely justified, we will proceed to describe its research methodology in order to test and prove this argument.
1.Empirical Dimension
The empirical dimension of this inquiry was researched mainly through qualitative methodology, i.e. case study research based on journalistic archives and testimonies uploaded in video documentaries. Conversely, official quantitative data were used to describe thoroughly the social and economic context of Michoacán and Guerrero, in the period of study.
Notwithstanding, the Mexican official legal concept of emergency was approached from a set theoretical point of view,28 which implied that each of its attributes constituted a sufficient condition for the acknowledgement of an emergency.
Based on the Article 29 of the Mexican Constitution, in this legal concept in the period of 2009 to 2014 three attributes (or sufficient conditions, from an established theoretical perspective) would have been necessary in Michoacán, Guerrero and other entities, for an emergency to have been validly recognized: a) serious detriment to public peace, b) pressing threat, and c) dangerous conflict.29
A serious detriment to public peace could be defined as that situation in which people cannot perform their ordinary activities, do not benefit from human development, and are constrained in their exercise of civil and political liberties due to social strife.30 Thus the main features of this condition could be summarized in the following terms: a) abnormality, b) deterioration of human development, and c) constraint in the practice of liberties.
On the other hand, a pressing threat (grave peligro), could be defined as that circumstance in which fundamental rights are constantly menaced by an extraordinary incident, and this threat can put in serious jeopardy these rights, in case of being too lengthy; thus the elements of this attribute could be summarized in the following terms: a) threat in strict sense, b) fundamental rights, and c) the unsustainability of the predicament.
Finally, a dangerous conflict (grave conflicto) could be defined as that context in which people are so polarized by their own interests that the law of violence prevails. Thus, the components of this sufficient condition could be summarized as follows: a) polarization, b) extreme individualism, and c) violence.
As it can be noticed, the methodological challenge in this article consisted in defining consistently each of the attributes contained in the legal concept of emergency, and find primary data that could operationalize them, so that one could be able to validly and reliably describe the degree of distress experienced in Michoacán, Guerrero, and other regions of Mexico, in the period of 2009 to 2014.
The main goal of the empirical inquiry of this article is to test a descriptive argument on the social context of Michoacán, Guerrero and other regions of Mexico, the primary data, chosen for this purpose, will, first and foremost, serve to describe with detail the situation that each case study underwent, and measure the distress that Michoacán, Guerrero and other regions in Mexico endured throughout the period studied.
Specially relevant in this research were the data that could inform us about two crucial manifestations of the constitutional crisis suffered in Michoacán, Guerrero and other regions, which had been caused by organized crime: a) the degree of subjection of authorities and common people to organized crime and b) the degree of replacement of the constitutional judicial system, by a “civic” one, in order to overcome this crime.
However, the empirical dimension of the present research was not exhausted with describing the emergency that Michoacán, Guerrero and other regions of Mexico faced throughout the period of 2009-2014, but it also included the task of describing the main features of their corresponding vigilante groups.
For this purpose, in the present research synthetic arguments will be used to classify self-defense groups in Michoacán, Guerrero and other regions, consistent with their observed peculiarities through primary data qualitatively analysed, and then a simple typology of these groups will be proposed based on their observed features.
Furthermore, to deeply understand the social and economic context of Michoacán and Guerrero in the period of study, this article correlates the presence of organized crime with other social variables in these states, such as their extent of social scarcities and their degree of schooling backwardness.
The population under study in this research was constituted by all the vigilante groups that appeared from 2009 to 2014 in Mexico, the sample was formed by the vigilante forces of Michoacán, Guerrero and other regions that rose in that period, and the units of analysis were the specific vigilante groups that displayed cohesive strategies in the specific regions of study. Finally, the observations on these vigilante groups were carried out through journalistic archives and testimonies uploaded in video documentaries.
Conversely, the journalistic articles and the testimonies uploaded in video documentaries were analysed qualitatively, through descriptive, magnitude, structural, values, evaluation, and versus coding.31 These types of coding procedures allowed the authors to possess a more objective system to interpret the degree of social distress endured in Michoacán, Guerrero and other regions of Mexico, in the period of 2009 to 2014.
First and foremost, descriptive coding granted us the opportunity to identify the types of serious crimes that common people reported having suffered from organized crime. Secondly, magnitude coding allowed us, by assigning an alphanumeric character to the descriptive code previously allocated, to recognize the intensity of these crimes.
On the other hand, structural coding was carried out to describe people’s interpretation of the gravity of the situation they were suffering, through the response of the following questions: a) Do they think that it is important to replace the constitutional judicial system to promote and defend their fundamental rights? b) Do they think that there is no other way left for them than self-defense, to protect their fundamental rights from organized crime? c) Do they think that the Mexican constitutional rule of law does not preserve sufficiently their basic human rights?
On the other hand, through values coding it was possible to interpret the value system that vigilantes possessed when they rose against organized crime. Finally, versus coding permitted us to elucidate if people approached their own fight against organized crime as a ruthless war.
2.Legal Dimension
In terms of the legal methods applied, the authors basically intended to interpret its cases studies in accordance with the legal criteria established in Article 29 of the Mexican Constitution, in the legal doctrines on constitutional dictatorship, and balance and deliberation, and in the relevant instruments of the IHRL, in order to discern if a suspension of constitutional guarantees and the enactment of emergency laws could have been done validly in these cases.
III.The case of Michoacán
At the beginning of the period of 2009-2014, self-defense groups rose mainly in the region of Tierra Caliente, in the west and south west of this state, in the municipalities that bordered the Pacific Ocean and the states of Jalisco and Guerrero (see Map 1).32
The main operating criminal organisation in Michoacán, at that time, was the Knights Templar (Caballeros Templarios), which had harassed local communities and seriously damaged the environment.34 Indeed, organized crime in the state of Michoacán posed a problem for the sustainable development of this region, since their members had carried out the irrational exploitation of natural resources. This destructive context triggered the formation of vigilante groups across the Tierra Caliente region of Michoacán.
As a premonition of the formation of these groups, local people started to build barricades to protect their communities from the Knights Templar.35 The devastating reality was that this drug-cartel had committed horrendous crimes against common people, ranging from cruel economic extortion to the rape and murder of wives and daughters of members of these vigilante groups.36
Unfortunately, the Knights Templar had subjected and paralyzed all kinds of public authorities (executive, judicial and legislative) in the state of Michoacán, by corruption or repression, clearing the path, in this way, to commit the worse possible crimes against common people: Extortions, abductions, rapes, property thefts, murders, psychological terrorism, and more.37
On the other hand, the constitutional judicial system could not guarantee a fair trial to the victims of this criminal organisation, because it was so corrupted that the enforcement of the law was manipulated against ordinary people and in favour of criminals.38
Furthermore, local people possessed evidence that many policemen and public authorities belonged to the workforce of this criminal organisation, so they could not benefit from any assurance or incentive, whatsoever, to collaborate with these authorities to prosecute and judge its members.39
The worst was that organized crime had replaced the Mexican state in taxing the chain of the economic activity of Michoacán and had threatened common people with execution, should they not agree to surrender to their extractive requests.40
Many people continued being disappeared without a subsequent criminal investigation, after they had refused to pay an extortion fee to the Knights Templar.41 Furthermore, there were many testimonies of people who had assured that the battle against this organisation was truly a matter of life or death, and that public authorities had been overwhelmed by this cartel and had not been able to fight it competently.42
Thus, clashes between vigilantes and political authorities unavoidably got under way, and they were exacerbated by the deep lack of trust local people had in the constitutional judicial system. Due to these unfortunate dynamics, people in Michoacán gradually took distance from the government, especially because they did not perceive that the Mexican state was doing enough to protect them against organized crime.43
On the contrary, federal and state authorities were more concerned on the rise of self-defense groups than on the causes of their emergence, so some news media focused on the official discourse that condemned their appearance more than on the civic discourse of these groups that had accused political authorities of being co-opted by and colluded with organized crime.44 Despite of claiming that their movement had been created against organized crime and not against the Mexican state, some print and broadcast news media started to approach vigilantes in Michoacán as dangerous out- laws, rather than a manifestation of the failure of the rule of law in Mexico.45 Nonetheless, some analysts approached the formation of these groups as a good opportunity to establish formal collaboration between civil society and state authorities with the aim to conquer organized crime, although the voices against the operation of these vigilantes increasingly opposed any form of collaboration with them.46
Unfortunately, the ruling party in Michoacán possessed a strong electoral interest in dismissing the presence of vigilante forces, and it spread in the public sphere, as a mechanism to protect its reputation, the view that this state truly lived under the rule of law.47 Therefore, not surprisingly, some news media highlighted the disarmament of self-defense groups, in Michoacán, as a great triumph of the Mexican state.48
Furthermore, the CNDH (Comisión Nacional de Derechos Humanos) and other Human Rights Organisations publicly refuted the human right to self-defense against organized crime, even when this opposition was leaving people vulnerable to serious violations of their human rights.49
The public denial that Michoacán was experiencing tax despotism, territorial control and paralegal order in the hands of the Knights Templar, made seem cruel any claim that this state was truly living under the rule of law, especially when this claim came from human rights activists or public authorities who had been aware of what organized crime had been doing in this state.
However, and despite the attempt to reduce the impact of vigilante groups on the reputation of the state government of Michoacán, the PRI faced a state electoral battle in 2015 that eventually resulted in it losing the government of the state.50
After generally describing the events that led to the formation of vigilante groups in Michoacán, and after getting to know, in more detail, the distress that they experienced due to the calamitous activities of organized crime in their state, we are in a better position to learn if the hypothesis set up in Article 29 of the Mexican Constitution to suspend constitutional guarantees and declare the state of emergency was actually fulfilled in the period of 2009 to 2014 in this state.
Concerning a serious detriment to public peace, we could observe that Michoacán lived through an abnormal situation: Organized crime was controlling more and more the economic activities of common people through extortion, tax fees, kidnapping, exploitation of natural resources, among others, and this escalating control damaged grievously the standards of living in this state.51
Regarding a serious threat, its elements were indeed present in Michoacán in the period of 2009 to 2014, because the threat in strict sense was of such a great magnitude, that not only the lives, properties and freedom of common people were at risk because of frightful crimes, but it also became so unbearable that local people got desperate and were forced to form vigilante groups. This desperation of local people could be judged as a clear sign of the insupportable suffering they endured in this period.
Concerning a serious conflict, the extractive activities of organized crime, in this state, triggered such a severe confrontation between local people and criminal organisations, that their differences could only be solved by extremely violent methods: Both, polarisation and violence, could be observed in this case.
On the other hand, the distress in Michoacán was extremely grave and, to a certain extent, uncontrollable, because it was handled with modest social capital and it fought against a very powerful and ruthless criminal organisation.
One distinctive feature of self-defense groups in Michoacán was that they gathered around a strong leader, José Manuel Mireles Valverde, and was not based on a large civic association spread all through the state, as was the case of Guerrero. Apparently, organized crime could recruit young people more readily in mestizo municipalities than in indigenous ones like Cherán.52
As a matter of fact, the emergency in Cherán encouraged the enactment of indigenous law to neutralize more capably organized crime and triggered the replacement of the constitutional judicial system by the local indigenous one. Furthermore, customary law has encouraged the self-organisation of people, it has developed social capital and trust, and it has boosted the com- munity spirit and the spread of democratic practices in the decision-making processes of this municipality.53
One of the most important peculiarities of the customary law of Cherán is that its principles encourage democratic practices and deals more with the common good of the municipality than with pursuing an orthodox criminal procedure. Moreover, it possesses a different view on the main aims of the penal system, probably because its context requires a different approach to the purpose and meaning of this system so as to achieve order and peace. In few words, the customary law of Cherán deems justice and fairness in a more substantive than procedural way.54
On the other hand, although organized crime is a widespread social phenomenon in Mexico, its presence in Michoacán is correlated with extent social scarcities, low schooling, and poor human development.
The following descriptive data obtained from the Coneval (Consejo Nacional de Evaluación de la Política de Desarrollo Social) of Mexico, can provide us a better picture of the hard social and economic environment that the people in Michoacán lived through in the period of 2009-2014.
Table 1 Social scarcities in Michoacán (2010-2014)
| Indicators | Percentage | ||
| 2010 | 2012 | 2014 | |
| Proverty | |||
| People in proverty | 54.7 | 54.4 | 59.2 |
| People in moderate poverty | 41.2 | 39.9 | 45.2 |
| People in extreme poverty | 13.5 | 14.4 | 14.0 |
| People vulnerable due to social scarcities | 28.6 | 30.7 | 25.0 |
| People vulnerable due to income | 4.3 | 3.5 | 4.1 |
| Non poor and non-vulnerable people | 12.3 | 11.5 | 11.7 |
| Social Deprivation | |||
| People with at least one social scarcity | 83.4 | 85.0 | 84.2 |
| People with at least three social scarcities | 40.3 | 36.6 | 35.1 |
| Indicators of Social Scarcity | |||
| Schooling backwardness | 30.6 | 26.1 | 27.6 |
| Scarcity of access to health services | 38.2 | 28.6 | 26.2 |
| Scarcity of access to social security | 72.2 | 71.6 | 71.3 |
| Scarcity of quality and spacious housing | 22.4 | 21.1 | 15.4 |
| Scarcity of access to basic housing services | 27.2 | 30.4 | 26.6 |
| Scarcity of access to quality diet | 28.8 | 32.2 | 34.7 |
| Welfare | |||
| People with lower income than threshold of minimum welfare | 21.6 | 24.2 | 24.4 |
| People with lower income than threshold of welfare | 59.1 | 57.9 | 63.3 |
Source: Coneval.55
To begin with, by the end of the period of 2009-2014 84.2% of the local population experienced a kind of social scarcity, 14% of people lived in extreme poverty, 63.3% of them did not generate the necessary income to support the threshold of welfare set up by Coneval, among many other relevant descriptive data about the degree of poverty, the social shortfalls and the access to basic services in Michoacán.56
In fact, almost all the indicators that measured social shortfalls in Michoacán experienced a setback at the end of the period, for example, the schooling backwardness (rezago educativo) performed worse in 2014 than in 2010,57 the share of people in poverty augmented considerably in comparison with the beginning of the period, as well as the percentage of people vulnerable due to a social scarcity.58
On the other hand, the portion of people earning an income lower than the cost of the basic food basket grew, but not only in Michoacán but all through the country.59 Although it is not the aim of this article to explain the spread of organized crime in Michoacán by means of these descriptive data only, they certainly provide us with the big picture of the social and economic environment that facilitated the recruitment of young people for criminal organisations in Michoacán.
Of course, we must also take into account the decay of family and social values in Michoacán, because it also had an impact on the growth of organized crime in this state. In other words, these descriptive data could demonstrate that, in a context of social scarcities and of shortage of ethical values, criminal organisations tend to recruit many young people for their rank and file.
IV.The case of Guerrero
In the period of 2009 to 2014, the social and economic context of Guerrero was even worse than in Michoacán, for example, the percentage of people earning an income lower than the threshold of welfare set up by Coneval was higher in Guerrero than in Michoacán.60
Overall, the indicators used by Coneval to measure social and economic scarcities throughout Mexico performed worse in Guerrero than in Michoacán.61 Furthermore, following a national tendency all the other indicators of economic and social scarcities suffered a grave reversal at the end of the period of 2010-2015, as can be seen in Table 2.
Table 2 Social scarcities in Guerrero (2010-2014)
| Indicators | Percentage | ||
| 2010 | 2012 | 2014 | |
| Poverty | |||
|
People in poverty People in moderate poverty People in extreme poverty People vulnerable due to social scarcities People vulnerable due to income Non poor and non-vulnerable people |
67.6 35.7 31.8 23.0 2.0 7.5 |
69.7 38.0 31.7 21.7 2.3 6.4 |
65.2 40.8 24.5 26.2 2.6 6.0 |
| Social Deprivation | |||
|
People with at least one social scarcity People with at least three social scarcities |
90.5 60.7 |
91.4 53.8 |
91.4 51.8 |
| Indicators of Social | |||
|
Scarcity Schooling backwardness Scarcity of access to health services Scarcity of access to social security Scarcity of quality and spacious housing Scarcity of access to basic housing services Scarcity of access to quality diet |
28.4 38.9 78.5 40.7 56.6 42.7 |
26.8 25.4 78.5 33.4 59.0 39.4 |
26.8 19.2 78.1 32.9 58.0 38.5 |
| Welfare | |||
|
People with lower income than threshold of minimum welfare People with lower income than threshold of welfare |
38.8 69.5 |
45.1 71.9 |
35.6 67.9 |
Source: Coneval.62
According to Coneval, in 2014 the share of people who lived in poverty was 65.2% and those who lived in extreme poverty formed the 24.5% of the overall population.63 On the other hand, 26.2% of people in Guerrero were vulnerable due to at least one social scarcity, and 67.9% of people was earning an income lower than the necessary to buy a basic food basket (canasta básica alimentaria).64
However, to make matters worse, the portion of people vulnerable to social scarcities increased from 23.0% in 2010 to 26.2% in 2014, and the percentage of vulnerability due to income increased from 2.0% in 2010 to 2.6% in 2014, according to these official data.65
Finally, the performance of Guerrero regarding the threshold of welfare, was below national average, much worse than in Michoacán, and unfortunately, this threshold is worsening consistently every year.66 As it can be observed, there is a strong correlation between extensive social scarcities and the poor human development of Guerrero, with the spread of organized crime across this federative entity.
In addition, Tecoanapa and Ayutla de los Libres were probably the first municipalities where the formation of self-defense groups started in this period. These first vigilantes experienced a paradoxical context though, because while they enjoyed wide popular support, public authorities and some human rights activists condemned their actions from the start.67
Another distinctive peculiarity of self-defense forces in Guerrero was that they possessed a visibly stronger social capital than their counterparts in Michoacán. Indeed the UPOEG (Unión de Pueblos Organizados del Estado de Guerrero) coordinated tightly their actions across the state territory, and this civil organisation proved to be quite capable in neutralizing organized crime.68 These policías comunitarias detained several people suspected of criminal actions and submitted them to the authorities of the state of Guerrero.69
These groups constantly practiced rounds and checkpoints, although they did not have to fight a very powerful and widespread organisation, like the Knights Templar, in Michoacán, but different less powerful criminal gangs distributed across the state. However, local people suffered deeply from extortion practices and the inefficacy of the police and the judicial system against these bands.70
In contrast with Michoacán, in Guerrero vigilante groups created, installed and implemented Tribunales Populares to prosecute and judge local criminals, and these events demonstrated how low trust in legal and political institutions fell, within the respective municipalities.
It is obvious that these popular tribunals could not guarantee neither the due process of law nor the constitutional procedural rights of suspected criminal, in order to warrant a fair trial. However, due to the complete failure of the Mexican judicial system in both prosecuting and judging suspected criminals, local people preferred to create, install and put into effect their own popular tribunals.71
Source: Víctor Manuel Sánchez Valdez.72
Map 2 Municipalities of Guerrero with self-defense groups (2015)
The implementation of these tribunals provoked the alarm of the CNDH, due to its justified fear that they could arbitrarily suppress fundamental human rights of suspected criminals, by not respecting the due process of law and the constitutional procedural rights of suspected criminals.73
Although slightly less severely than in Michoacán, people in Guerrero endured likewise an abnormal situation, as well as the constraint to carry out their ordinary lives, and a serious deterioration of their standards of living, precisely because of the harassment from organized crime. To sum up, attributes of a serious detriment to public peace could be observed.
With respect to a pressing threat, people in Guerrero did suffer threat strictly speaking, because organized crime practiced extortion, kidnapping, rape, murder, theft and other violent crimes, with increasing ruthlessness and cruelty.
Furthermore, their fundamental rights were at high risk due to this devastating activity of organized crime and, ultimately, with regard to the danger of this risk, perhaps the best indicator of this circumstance was the exasperation of the people and their decision to try and judge, by themselves, suspected criminals through popular trials.
Finally, respecting a dangerous conflict, we can claim that the calamitous activity of organized crime and the absence of the Mexican state triggered a bitter violent conflict between criminals and the vigilantes, to the point of overriding the constitutional judicial system to settle their differences.
Certainly, organized crime in Guerrero was not so solidified across the state as in Michoacán, so although the distress was real, people in Guerrero could neutralize better their threat than their counterparts in Michoacán.
Finally, the most severe symptom of emergency in Guerrero was the de facto replacement of the constitutional judicial system by a customary one in several municipalities across the state. This replacement could have represented a syndrome more of exasperation than of desperation of the people. It could also have been a clear sign of the strength of social capital and of the power of civic organisations against criminal ones across the state. Thus, Guerrero might be considered a good example of how a strong social capital contributes decisively in the struggle against organized crime.
V.Other cases
From Sonora to Yucatán,74 civil society in Mexico has organized vigilante groups to protect their lives, freedoms, properties and their fundamental rights from crime. In all these cases, people have complaint of the absence of the state facing crime.75
By the end of 2013, there were versions that self-defense groups were present in eleven states of Mexico.76 However, this number has increased in recent years, and nowadays there are claims that these groups are also present in states that were considered relatively safe, such as Yucatán, Sonora, Quintana Roo or Mexico City.77
An interesting case, in the period of 2009 to 2014, was Chihuahua. In this state, people suffered desperation likewise, due to the violence and ruthlessness of organized crime, so they to self-defense, despite of the criticism of Human Rights activists and authorities alike.78 On the other hand, another state that has suffered immensely the violence of organized crime is Tamaulipas, to such an extent, that, during many years local people could not exercise civil liberties to associate and meet to plan their self-defense.79
Many municipalities in this state lived a de facto subjection to organized crime, which controlled all their ordinary activities and properties.80 People literally lived terrorized and with utmost fear, in such a way, that they could not speak publicly about the wrongdoings of organized crime and the sufferings its members were causing them, inasmuch as they were immediately eliminated should they intend to do so.81
Nevertheless, by early 2014, the first reports about vigilante groups in this state were published. These groups, like their counterparts in Michoacán, were facing very powerful criminal organisations that had destroyed trust and social capital in Tamaulipas, thus the capacity of people to capably organise their self-defense. That is why the task of overcoming drug cartels was enormously difficult for these new vigilante groups.
VI. Analysis of the Legal Feasibility of a Declaration of State of Emergency in Mexico
The doctrine explained by Robert Alexy on balance and deliberation of the right to protection (of basic goods) and the right to defense (of liberties), can provide us with a proper criterion to discern the necessity, proportionality and adequacy, of a suspension of constitutional guarantees and of the enactment of emergency laws, so that the constitutional order may be restored completely in specific regions of Mexico.
In consonance with Robert Alexy,82 the right to protection (of basic goods) implies the duty of the state to perform a positive action aimed at safeguarding fundamental rights. However, sometimes the necessary action that could protect these basic rights interferes with or harms a particular right to defense (of a liberty). Alexy believes that the fair solution in this hypothetical collision of rights consists in balancing, in accordance with the principle of proportionality, both kinds of rights.83
Furthermore, the principle of proportionality is composed of three subprinciples: a) adequacy, b) necessity and c) proportionality in strict sense. Adequacy implies that a constitutional guarantee should not be violated unless its transgression pursues the enhancement of another constitutional right.84 In addition, necessity suggests that if the state must choose between two methods of protecting fundamental rights, the one that interferes the least with the right to defense (of liberties) should be chosen.85
Lastly, proportionality in strict sense proclaims the principal law of balance and deliberation: “As much as a principle may be harmed, so much important is to guarantee the other one”.86 Robert Alexy expresses this principle through a mathematical formula:
Wi,j = Ii/Ij
Where (Wi,j) means the weight of principle (P1) in the particular study case, (Ii) stands for the damage of (P1) by a particular measure (M), and (Ij) implies the negative effects of the omission of (M) (and of the omission of the dam- age to (P1)), to the principle (P2).
In this formula, P1 symbolizes the constitutional right to protection (of basic goods), P2 speaks of the constitutional right to defense (of liberties).87
Thus, from the principle of proportionality and its sub-principles, we can draw two interesting conclusions:
If the harm to a right to defense (of liberties), caused by implementing a particular measure (M), is greater than the harm to a right to protection (of basic goods), by not adopting this measure (-M), then this measure should not be implemented, for the sake of enhancing constitutional liberties.
But, if the harm to a right to protection (of basic goods), caused by not implementing a particular measure (-M), is greater than the harm to a right to defense (of liberties), by adopting this measure (M), then this measure should be implemented, for the sake of preserving fundamental rights.88
The argument of this article is that the second conclusion was the case of Michoacán Guerrero and other states of Mexico, in the period of 2009 to 2014, because the suspension of constitutional guarantees and the enactment of emergency laws, would have benefited enormously the right to protection (of lives, properties, physical integrity, fundamental freedoms, etc.) of common people, and would not have harmed intensely their right to defense (of specific civil liberties).
In few words, the rights that needed to be protected by the state (lives, properties, freedoms, physical integrity, etc.) were far more relevant than the rights that needed to be defended from the intrusion of the state (e.g. confidentiality of bank accounts, restriction of movement in certain hours, prohibition of public gatherings).
There must be a comparative value judgment between the enforcement of the rule of law (P1) and specific constitutional guarantees of explicit people (P2). The Mexican state has the responsibility of securing its viability, even at the cost of not respecting, momentarily, constitutional rights of particular people (e.g. the right to an orthodox criminal procedure or some rights to confidentiality in financial matters).
This means that whenever (P1) (the rule of law) is in danger, (P2) (orthodox criminal procedure) or (P3) (specific civil liberties or particular rights of confidentiality) should be left aside, because (P1) protects a far more relevant good for society than (P2) or (P3). In fact, crimes against the state (P1) entail the destruction of all that could make people happy and enjoy their fundamental rights: life, freedoms, property, integrity, human development (P2, P3, etc.,, etc., that is why the right to a functioning, healthy, capable and strong state (P1) prevails over other constitutional rights (P2, P3, etc.), no matter how basic they appear to be.
Nevertheless, if the state is not enduring a pressing threat to its viability or living through a grave distress, then P2, P3, etc. (constitutional guarantees) are worth more than any public policy that pretends to strengthen the rule of law (P1), but damages at the same time these constitutional rights. This means that, in ordinary and peaceful circumstances, procedural rights of suspected criminals should always be respected. In this case, there would be no excuse to override these rights.
The first source of power of the state is its viability, and once it works, it makes the constitutional rule of law function as well. This implies that, in case of a hazardous threat, some constitutional rights should be overridden to guarantee the existence of the state and the rule of law.
To judge the case of Mexico fairly, based on the doctrine of balance and deliberation of Robert Alexy, it is important to answer the following questions: Would the suspension of constitutional guarantees in Michoacán, Guerrero and other regions, in the period of 2009-2014, have been a competent measure to address efficiently their distress?
Our argument is yes, it was a fitted action, because it would have been at the service of restoring the constitutional order in these regions, thus at the service of protecting fundamental rights of people living there.
The second question is would it have been necessary to suspend constitutional guarantees and enact emergency laws in Michoacán, Guerrero and other regions, in the period of 2009-2014, to capably oppose organized crime? Our answer is yes, it would have been necessary, but the options to subdue competently criminal organisations were wide, and the Mexican government was forced to choose one that would have been efficient and would have dam- aged as little as possible procedural, civil and political rights of people.
The final question is would the suspension of constitutional guarantees have been proportionated with the distress that Michoacán, Guerrero and other states suffered in the period of 2009 to 2014? Our answer is yes, it would have been proportionated. However, ideally it should have lasted a short period of time, because it would have been quite powerful in re-establishing the rule of law and guaranteeing the protection of human rights.
Conversely, the suspension of constitutional guarantees and the enactment of emergency laws could have helped competently in dismantling rapidly criminal organisations in these regions, and in enhancing the responsiveness of the Mexican state against drug-cartels.
Furthermore, these measures could have improved the intelligence of the Mexican state (strategic and tactical) in order to break down the financial support and supply of arms for drug cartels, through allowing direct access to confidential information from economic transactions related to these criminal activities.89
On the other hand, emergency laws could have powerfully worked to improve institutional coordination by avoiding duplicity of functions and unifying protocols to detain suspected criminals. Moreover, the formal declaration of emergency in these regions could have provided space-time for the quality improvement of institutions and physical infrastructure to capably enforce the rule of law.90
In addition, emergency laws could have contributed to improve mechanisms of control of authorities and society (judicial, assets, anti-corruption and social), in specific regions of Mexico or throughout the country.91 Finally, these laws could have also contributed to achieve a capable law enforcement system, as well as competent prosecutorial and judicial systems, to vigorously strike organized crime, and which could have continued, in substance, after the emergency would have formally ended.92
VII.Proposing Typologies of Emergency and Vigilantes in Mexico
In terms of the severity of the emergency, it can be sustained that Guerrero bore a less intense distress than Michoacán. People in Guerrero could man- age to make their suffering more tolerable, by implementing popular tribunals; and this replacement of the constitutional judicial system, by a customary (indigenous) one, plus the scattering of criminal organisations across the state, made people possess a better context to face up to organized crime.
Concerning the strength of self-defense groups, Guerrero’s vigilantes could be rated as first class forces, since they had been strongly solidified through widespread civic organisations, whereas the vigilantes in Michoacán can be considered as second class forces, because they had not been unified through widespread social capital, but were only well coordinated around a strong personal leader (José Manuel Mireles Valverde) in order to stand up to the Knights Templar.
On top of that, it could be observed that the forces in Michoacán were more vulnerable to the infiltration of organized crime than in Guerrero. On the other hand, the forces in Guerrero were more cohesive and better coordinated.
The third-class forces, in terms of their strength, were those that had worked dispersedly, without coordination, thus being left with much more difficulties to conquer their common enemy. This could well be the case of self-defense groups in other federative entities, like Tamaulipas, Chihuahua, Sonora, Yucatán and Quintana Roo.
Nonetheless, after the analysis of primary data, it is possible to argue that vigilantes in Guerrero put into effect more like a rebellious movement against organized crime, whereas vigilantes in Michoacán implemented more a kind of ruthless war, because their enemy was more difficult to defeat.
However, in both cases we could notice an acknowledgment that the rule of law was not capable of neutralizing solidly organized crime; that is why it was set aside in some municipalities, so that the indigenous customary law could instead rapidly restore peace and order.
VII.The current debate on the state of emergency in Michoacán, Guerrero and other troubled regions in Mexico
Some scholars have argued that there are different options to a formal declaration of state of emergency, which do not entail the restriction of non-peremptory human rights and could be equally effective in improving public, interior and national securities in Mexico, particularly in Michoacán and Guerrero.93 For example, the implementation of sensible measures of intelligence, strategy and technology in order to capture, subjugate and institute proceedings against members of organized crime.94
Nonetheless, Mexican authorities have attempted to implement policies other than a formal declaration of state of emergency, such as the sanction of the Law on Interior Security and the Law on National Security, whose enforcement, incidentally, has implied the acknowledgement of a de facto state of exception in some regions of Mexico, and has authorized military actions that can only be performed in the course of emergency periods.95
In contrast, a formal derogation of non-peremptory human rights norms, which is the logical output of a formal declaration of state of emergency, if properly implemented, would not standardize an abnormal situation. On the other hand, the enforcement of these laws could turn a factual state of emergency into an endless state of affairs, by way of authorizing the intervention of military forces in the prosecution of organized crime in ordinary circumstances.96
Additionally, emergency powers can nurture the rapid, decisive and efficient response of Mexican authorities to reestablish public, interior and national securities in Mexico, and hastily restore the constitutional order across this country, once criminal organizations are effectively curbed through these powers. Furthermore, a formal declaration of a state of emergency would force the Mexican state to design and publish, as soon as possible, a detailed plan of action to reinstate effectively the constitutional order and enforce efficiently the rule of law across all those regions struck by organized crime.97
Additionally, this kind of declaration would imply the formal acknowledgement of a crisis, thus the need for the Mexican President to exercise extraordinary faculties in order to face such a situation and reestablish constitutional normality. On the other hand, the Law on Interior Security and the Law on National Security point the way to the standardization of the intervention of military forces in the prosecution of organized crime, which could increase the ordinary distress of Mexican society, because of the lack of a specific plan and dateline to bring back constitutional normality.98
Nevertheless, it is a reality that the Mexican state faces such serious security challenges that, a transitory derogation of non-peremptory human rights norms, through a formal declaration of state of emergency, may still seem as an insufficient mechanism to competently meet those challenges.
This circumstance could explain why the approval of these laws was so well regarded and welcomed by presidents Fox, Calderón and Peña Nieto, and their followers, in their respective administrations (sexenios), since these laws provided them with practical tools to manage the armed conflict with organized crime, without committing themselves to develop a thorough and detailed plan to restore the constitutional order within a specific dateline, as a formal declaration of state of emergency would have forced them to accomplish.99
Because of this situation, the authorization of these laws could have also meant that both the public emergency and the humanitarian crisis brought about in some regions of Mexico by the destructive activities of organized crime, were much worse than initially thought, and they could have symbolized the recognition of the Mexican state of its incapacity to solve these crises through transitory emergency powers.
Moreover, the ugly truth is that, although unacknowledged, some regions of Mexico, like Michoacán and Guerrero, live in a quasi-state of war, since organized crime constantly carries out extremely ruthless strategies to permanently undermine the Mexican state’s army, police forces, rule of law and ordinary institutional framework.100
Because of this state of affairs, the Mexican legal doctrine needs to up-date its interpretation of a public emergency, based on the most recent and relevant scholarly contributions, so that rising social hostilities executed by non-state agents and aimed at subjugating state authorities can be faced up properly and successfully, by the Mexican state, without the need to enact controversial laws.
On the other hand, some scholars have asserted that the Mexican state has not observed its constitutional principles at sanctioning the Law on Interior Security and the Law on National Security since, according to them, these laws were not properly based on the Mexican Constitution, and they openly contradicted its Art. 129.101
In contrast, a formal declaration of state of emergency and derogation of non-peremptory human rights norms would avoid this kind of criticism by being duly motivated and justified in Article 29 of this Constitution, since its aim would be to restore the constitutional order harmed by the calamitous activities of organized crime.
Furthermore, a formal state of emergency could stop the process of alteration (or reinterpretation) of the Mexican Constitution, which both the Law on Interior Security and the Law of National Security have prompted in order to justify the ordinary intervention of military forces in the prosecution of criminal organizations.102
Moreover, the Law on Interior Security and the Law on National Security might become counterproductive in the long term, because they address the armed conflict against organized crime as if it were an ordinary issue, in which constitutional principles could be entirely complied with. In contrast, a formal state of emergency would openly acknowledge that these principles could not be fully respected in this commitment, since the institutional disturbance caused by criminal organizations in some regions of Mexico should be deemed as critical or exceptional in nature.103
Moreover, through the formal declaration of a state of emergency, in the course of dismantling criminal organizations the state could avoid the weariness of being constantly accused of non-peremptory human rights violations. However, in the long term, this formal declaration could better guarantee the definitive restoration of the rule of law in Mexico, hence the conclusive enforcement of all human rights across all those regions struck by organized crime.104
Finally, a formal declaration of state of emergency in Michoacán, Guerrero and other regions of Mexico might stop and repair some of the “constitutional costs” that military forces have produced to the Mexican state while guaranteeing public, interior and national securities across these regions.105
IX.Final considerations
The fact that the constitutional judicial system could not preserve human rights of victims of organized crime, the reality that fundamental rights were substantially overridden by this crime, and the truth that horrendous abominations were overwhelming in Michoacán, Guerrero and other states, constituted a solid ground for the acknowledgement of a constitutional crisis in these regions.
Furthermore, these circumstances prompted either a serious threat or a dangerous conflict or a grave detriment to public peace (each one being a sufficient condition for the valid suspension of constitutional guarantees) in the regions of study of the present research.
If we consider that criminal organisations in Mexico use ruthless war tac-tics to subject people, that they are merciless, that they have no respect for innocent people, it is opportune to ask the following question: Is it judicious in this context to be concerned with protecting scrupulously all constitutional rights of members of criminal organisations?
Unfortunately, the normative response of the CNDH and other Human Rights Organisations to this question, instead of solving the grave crises in these regions, impeded the timely design of constructive policies that could have helped the Mexican state to competently defend the basic rights of common people in front of organized crime.
All the same, this normative reply has rendered ineffective the Mexican state to neutralize conclusively organized crime. Moreover, this outlook has led many regions of this country to live in a permanent state of subjection to drug cartels, by which human rights of common people are trampled upon ruthlessly. Thus, the lack of acknowledgement of the crisis suffered in these regions is unfair for the millions of people who live there.
A formal declaration of emergency would be an acknowledgement of the true reality that this people endure. Conversely, the refusal to acknowledge this fact would expand severe consequences against these people.
On the other hand, the Mexican Law has not advanced adequate criteria to esteem, in a context of absence of the state, the fairness of self-defense against ruthless crime. Consequently, this lack of fair criteria emboldens more and more criminal organisations, because they feel over protected, whereas ordinary people feel increasingly desperate on the grounds that they perceive that the Mexican state has leaned more to the side of criminals than to their side.
Furthermore, the distress lived through in Guerrero and Michoacán resulted in the revival of indigenous customary law, since people needed to recover their ancestral traditions and customs to conquer organized crime and achieve their own development.
Based on the two main cases studied in this research, we infered that, through a robust human development and the efficient encouragement of social capital, people in Mexico could be able to efficaciously fight criminal organisations throughout the country.
Finally, the suspension of constitutional guarantees and the enactment of emergency laws are part of the portfolio of powerful instruments to reconstruct the peace, order, security and respect of human rights in the Mexican state. Nonetheless, to produce the expected result, they need to be accompanied by upright policies that shall redesign, for ordinary times, the law enforcement, the prosecutorial and the judicial systems, so that they guarantee the appropriate punishment and reparation of criminal actions, as well as the control mechanisms (judicial, assets, anti-corruption and social)106 of the authorities and society to prevent the growth of organized crime in Mexico.
