Summary: I. Introduction. II. The Dignity and the Personality of the Individual as Foundations for the Recognition of Human Rights in Mexico. III. The Constitutional State and Fundamental Rights in Mexico. IV. Good Governance and Human Security in Mexico. V. Effective Law Enforcement and Human Security in Mexico. VI. Democratic Governance and The Human Right to Effective Law Enforcement in Mexico. VII. The Justiciability in Mexico of the Human Right to Effective Law Enforcement. VIII. Relevant Policies for Improving Law Enforcement in Mexico. IX. Autonomous Constitutional Bodies and Effective Law Enforcement in Mexico. X. Institutional Reform and Effective Law Enforcement in Mexico. XI. Conclusions. XII. References.

Humanitarian crises in Mexico have been triggered by the inability of the state to uphold the rule of law. Indeed, the most serious human rights abuses in this country derive from a widespread culture of impunity. Nevertheless, there has been little reflection in Mexico about the importance of effective law enforcement in advancing not only the rule of law but in guaranteeing human security in general.

Many scholars have focused on the importance of law enforcement agencies respecting the rights of suspected criminals,¹ yet very few have reflected on the link between an effective law enforcement system and the attainment of human security in Mexico.² The present article is intended to fill this gap in the academic scholarship and argues that effective law enforcement should not only be regarded as a human right, but also one of highest priorities necessary to ensure a minimum threshold of security. Effective law enforcement should contribute to improving the level of human security in Mexico in addition to respecting the human rights of persons suspected and convicted of criminal activity. For this reason, effective law enforcement also constitutes a key factor in improving the rule of law in this country.

Besides, in terms of the conceptual relationship between law enforcement and human security, it has been argued³ that the ultimate purpose of law enforcement should be to preserve those social conditions which allow all human rights to be properly respected, protected, defended, promoted, and exercised. Preventive, investigative and prosecutorial agencies are of critical importance in modern societies, since their failures could have a negative impact not only on their specific law enforcement tasks, but also on the level of human security. These agencies are key to the advancement of political stability in any country, which is why it is important to promote their effectiveness. By improving their performance, these agencies strengthen the most foundational pillar of any democratic and free society: a solid rule of law.

Unfortunately, law enforcement agencies in Mexico have actually become part of the human rights problem,⁴ and the militarization of law enforcement tasks has exacerbated this type of abuse. Some of the main deficiencies of municipal, state, and federal preventive and prosecutorial agencies in Mexico which inhibit effective enforcement of the law are: a) fragmentation, b) inadequate training, c) lack of career development, d) lack of transparency and accountability, and, e) an authoritarian design model.⁵ Additionally, there is confusion in Mexico regarding the formal scope of responsibility of the various law enforcement agencies since Mexico’s “national security agenda has blended with its public security goals”,⁶ causing uncertainty regarding which responsibilities the different agencies are to fulfill in their struggle against organized crime.

The lack of checks and balances, control mechanisms, and proper accountability within the law enforcement system in Mexico has also contributed significantly to human rights violations in the country. Furthermore, “Mexico’s police institutions and model are the root causes of violence, corruption and insecurity”,⁷ which means that the authoritarian culture of this country frequently induces law enforcement agencies to operate arbitrarily and perform deficiently. For this reason, Mexico needs better democratic checks over these agencies and more community participation demanding greater responsiveness, transparency and accountability so that their legal goods are more effectively protected.⁸

In this regard, Nicoline Ambe⁹ highlights the importance of the strength of the rule of law in effectively advancing human rights. She also acknowledges that the independence of the judiciary constitutes an essential condition for solidifying the rule of law since it prevents any other branch of government from enforcing the law arbitrarily. Unfortunately, both preventive and prosecutorial agencies in Mexico frequently perpetrate some of the most serious human rights abuses against both ordinary people as well as suspected criminals, mainly due to their cooptation by, and submission to, local political bosses who control them to further their own political agendas or to conceal their own collusion with organized crime.¹⁰

What clearly explains the exponential rise in the levels of violence and human rights abuses in Mexico are the ruthless clashes that regularly take place between rival criminal organizations, as well as those which occur between these organizations and the state’s various security agencies. These encounters often have the appearance of actual warfare since these agencies, and the Mexican army itself, have been encouraged to destroy these criminal organizations at all costs.¹¹ Despite the constitutional amendments initiated by President Felipe Calderón and approved by the Mexican Congress during his sexenio (2006-2012), which were designed to provide increased resources and improve the performance of the preventive and prosecutorial agencies, as well as the judiciary and penitentiary authorities in combatting organized crime, human rights abuses have sharply increased. In fact, Mexican civil society has experienced an increasing level of ruthlessness from criminal organizations. This makes effective law enforcement more necessary than ever to guarantee a minimum threshold of human security in Mexico.¹²

Today, effective law enforcement is a critical prerequisite for the proper defense and protection of fundamental rights in Mexico. This is especially true because of the humanitarian crises resulting from the ruthless violence of organized crime in different regions of the country. Thus, law enforcement agencies must be a key focal point of any comprehensive institutional framework intended to defend and protect human rights.¹³

However, even the most effective law enforcement system can succumb to arbitrariness if Mexican authorities do not use the state apparatus properly and consistently to enforce the law and instead use it to advance their own interests. The law enforcement system in Mexico should demonstrate the active involvement of inclusive political institutions, or even consensus democracy,¹⁴ since this type of law enforcement presupposes effective accountability and control mechanisms. This accountability is especially important regarding the authorities in charge of the national system of public security in order to ensure that they execute their responsibilities lawfully and with the goal of strengthening the rule of law.

Effective law enforcement requires the ongoing training of police officers. This has, unfortunately, been largely disrupted, and even corrupted, by a deep clientelist culture that has neutralized its potential positive effects.¹⁵ This has occurred primarily due to powerful political bosses (or caciques) having coopted the preventive and prosecutorial agencies at the local, state, and even national level. As a result, impunity has increased astronomically and has become the most serious challenge to effectively advancing human security in Mexico.¹⁶ Through appropriate sanctions, Mexican authorities should ordinarily be able to guarantee the respect for human rights which are fundamental for protecting human dignity.

The endemic impunity in this country has been generated primarily by the shortcomings of preventive and prosecutorial agencies in performing their public responsibilities. Since the amendment to the Mexican Constitution in 2011 regarding the presumption of innocence, prosecutorial agencies cannot request the imprisonment of suspected criminals until they have been proven guilty and been sentenced. Despite representing some progress with the respect to human rights, the 2011 amendment has, nevertheless, been particularly challenging for Mexico, since law enforcement agencies do not currently possess sufficient human, technological, logistical, and budgetary resources, nor the trained personnel, necessary to successfully investigate every crime. Often, their personnel have not been sufficiently trained in the prosecution of crime and the formal processes designed to achieve this goal have become extremely slow to be implemented.¹⁷

Why should human rights be universally respected? It has frequently been argued that the main reason justifying this universal respect relies on the inherent dignity of the human being, on his or her dignity as a person, endowed, either potentially or in fact, with reason and free will, who, by his mere existence possesses a transcendental purpose.¹⁸ It has also been claimed that all people, no matter their accidental circumstances, share only one nature and the same dignity as their fellows, thus, in principle, each is entitled to this right as a result of this shared nature: that each individual shall be secure in the enjoyment of their freedom and happiness.¹⁹

The positive concession of legal recognition to every individual constituted a crucial step toward the official recognition of individual human rights since such recognition can only occur once every individual is recognized as a person under the law.²⁰ Consequently, formal legal recognition is granted to every person, whether their capacity to exercise their rights may be potential (as in the case of children) or actual (as in the case of mature people). Therefore, through the legal recognition of each individual the law concedes every human being certain fundamental rights, but also subjects him or her to basic duties, so that through these rights and duties each may determine his or her own destiny.

Legal recognition demands each person take full responsibility for her or his actions and constitutes the basic premise for attributing legal consequences for one’s acts, in terms of rewards or sanctions. Thus people are officially acknowledged as their own masters, as “someone” rather than “something”; who are able to decide by themselves their own fate, thus distinguishing them from other entities that have recently been granted certain rights, but who are not masters over themselves (such as animals, the earth, the environment, etc.). This official acknowledgement of the individual person as his own master entitles him to the enjoyment of civil liberties and political rights, without which he could not be authentically free within the political community.

Consequently, effective law enforcement should be regarded as a fundamental right in Mexico since it is only by this means that preventive and prosecutorial agencies can competently protect these basic legal rights. Hence, a more effective law enforcement system would contribute to the enhancement of freedom in this country, and through this, Mexicans could productively pursue the democratic governance of their country. Social, economic, and cultural rights, such as the right to education, dignified housing, access to health care, meaningful work, social security, adequate food, etc., are also important since they allow people to more effectively pursue their own personal and communal happiness.²¹

The Mexican constitutional state recognizes certain fundamental rights as legitimate limitations on the exercise of political power. In principle, this recognition aims to prevent the arbitrary exercise of power by executive, legislative and judicial authorities so that these fundamental rights, as well as other civil liberties and political rights, may be effectively protected from autocratic governance.²² Within the Mexican constitutional state, political power has been formally limited through basic principles, namely, the principles of constitutionality and of legality of authorities’ acts.²³ The exercise of this power is also subject to the fundamental duties of transparency and accountability.

In our case study, Mexico, there are additional constitutional principles that authorities must follow which are designed to protect, defend, and promote human rights such as the pro persona principle and the principles of progressivity, universality, inalienability, interdependence, and indivisibility of these rights.²⁴ Another central characteristic of the Mexican constitutional state is the formal system of checks and balances incorporated into its presidential system of government, which is designed to ensure should not only good governance with respect to public policies and laws, but also to support the protection and defense of fundamental rights.²⁵ The formal goal of these checks and balances is to avoid the emergence of a tyrannical regime, that is, to impede the subjection of the entire Mexican political system to the arbitrary will of one individual or single branch of government.²⁶ Only when all fundamental rights are effectively protected in Mexico will civil liberties and political rights be exercised to their fullest extent throughout this country and human dignity be fully respected.²⁷

As stated above, the protection of basic social, economic, health and cultural conditions necessary for living with dignity have become indispensable to guarantee human security within a constitutional state. This implies that a minimum threshold of human security must be guaranteed in order to encourage human development. Only through effective democratic governance it is possible to achieve these basic conditions, since, in principle, this form of governance implies deliberation and the implementation of sensible public policies that will effectively protect, defend, and promote all human rights.²⁸

In other words, good governance implies coherent steps are taken to ensure a minimum threshold of human security within the constitutional state. Although this intrinsic purpose of good governance has not been seriously disputed in legal scholarship, the appropriate means of achieving this threshold have been controversial in other social disciplines. For example, political science scholars have argued that enhancing certain specific aspects of democracy (such as public debate, political participation, transparency, accountability, responsiveness, rule of law, elections, etc.) would improve the ability of lawmakers and ordinary citizens to think about, discuss, and implement sensible policies that might improve the welfare, human security and human development of the people within the state.²⁹

In fact, the scholarly debate on human security has also been linked with the scholarly debate on human development.³⁰ Historically, it is possible to distinguish two broad routes that countries around the world have followed to promote human welfare (and human development). The first, led by the US and the West, is a free market economic system, mixed with some measure of social subsidiarity and social solidarity (or a welfare state). The second, currently led by China, North Korea and other countries, is the pursuit of a centralized economic system inspired by Marxist materialist thinking.³¹

Democratic governance implies that various controls function efficiently in the course of executive, legislative and judicial decision-making processes,³² for example: a) top-down accountability (through periodical elections), b) checks and balances (effective horizontal accountability), c) data access and transparency, d) the rule of law, e) equality and freedom, f) political participation, g) the public sphere (public debate and access to news media), etc. The goal of these controls is that laws, public policies, and judicial determinations be thoughtfully reached from an inclusive perspective, that is, a perspective based on what is beneficial for the entire community, which is the only one that can successfully advance human security and human development.

In this way, the different dimensions of a democratic regime should work effectively within the Mexican state so that legislative, executive and judicial authorities, and the society at large, may more easily achieve consensus or majority decisions (or majority opinions, as the case may be) regarding those laws, rulings and public policies that could effectively improve, not only human development, but also the various subdimensions of human security (e.g., food security, economic security, health security, environmental security, personal security, community security, and political security), as well as other pertinent types of security (e.g., citizen security, social security, public security, interior security, national security, international security, etc.). The proper functioning of the checks and balances within the Mexican presidential system of government ensure that the executive, legislative, and judicial powers do not disregard human rights, human security and human development in their public policies, laws and rulings. Consequently, the appropriate structural functioning of its democratic regime should become the starting point for advancing human security, human development and the respect for human rights within the Mexican constitutional state since a superior deliberative democracy could improve the quality of public policies aimed at enhancing the respect for fundamental rights as well as the effectiveness of the state apparatus, protect people from any type of threat to their existence or bodily integrity, and in foster their potential as rational beings.³³

Deficient democratic governance can become the most serious obstacle to safeguarding human rights in Mexico, including the human rights of access to justice and of due process of law, since without checks and balances, even the Mexican judicial power could easily manipulate its ruling in a way that avoids accountability for its decisions. To improve human security and human development in Mexico it is necessary to promote an extended civic culture that effectively protects, defends and respects human rights in everyday life, without the need for legal disputes. In other words, an extended civic culture would contribute to the enjoyment of human rights in ordinary life.³⁴ Furthermore, democratic governance also implies the pursuit of policies that can effectively promote the enjoyment of human rights in everyday life, especially through the standard decisions of administrative authorities. Good governance depends on expanding opportunities for citizen participation in executive, legislative and even judicial spheres (e.g., grand juries) so that the resulting laws or policies may be better oriented to the effective accomplishment of both human security and human development within the constitutional state.³⁵ Coherent policies that improve access to justice and guarantee due process of law will improve not only the rule of law but will increase the level of human security as well, since these fundamental rights have become essential to effectively defend, protect and advance all human rights, which are especially important in the context of the humanitarian crises that have resulted from the ruthlessness of organized crime.³⁶

For these reasons, competent and effective law enforcement in Mexico should be recognized as a fundamental right, not only to successfully defend and protect the human rights of suspected, indicted, convicted and sentenced criminals, but also the victims of crimes and ordinary people, since this kind of law enforcement has become indispensable to prevent the disruption, disorder and even destruction of entire communities, especially that caused by non-state actors. Thus, effective and competent law enforcement constitutes a crucial means to advance human security within a constitutional state. There is a mutually dependent relationship between a functional law enforcement system and the level of human security in Mexico. Individuals cannot be protected, and human rights can hardly be enjoyed, unless the state apparatus implements preventive mechanisms that protect them from crime, investigative and prosecutorial strategies that discourage crime, judicial procedures that can efficiently resolve legal disputes, and penal systems designed to not only punish but to repair any damage.

The appropriate functioning of these five subdimensions (prevention, investigation, prosecution, judgment, and correction of criminal offenders) that encompass effective law enforcement is indispensable for guaranteeing the proper respect, protection, defense and promotion of all human rights in Mexico. As previously stated, this applies not only to those suspected, indicted, convicted and sentenced criminals, but to ordinary citizens and victims of crime who are regularly exposed to serious mental and physical harm, especially by non-state actors. Of course, protection of the human rights of people facing criminal investigation and prosecution is indispensable for achieving a fair criminal justice system, as Professor Ferrajoli would remind us.³⁷ Nevertheless, it is equally important that the Mexican state develop the capability of enforcing the law in a manner that also discourages any future criminal or unlawful behavior.

In other words, the robustness of law enforcement is critical for the overall strength of the rule of law in Mexico, and a solid rule of law is an essential precondition for peace, order, prosperity, and democracy, as well as human security and human development in this country. This is the reason why policies focused on improving the effectiveness of law enforcement are crucial in Mexico, since they could have a positive impact on the overall development, stability and internal security of this constitutional state.³⁸ Nevertheless, though crucial, effective law enforcement should be regarded as only one of several critical factors that could improve the state of human rights in Mexico. Other factors include the design of appropriate policies that guarantee social, economic, and cultural development, or as previously explained, more and better checks and balances within the Mexican presidential system of government to guarantee the proper level of accountability, transparency, and responsiveness of its authorities.

Without effective law enforcement, it is difficult to advance the rule of law and human security in this country. Therefore, one of the highest priorities of the Mexican government should be to improve systems for the prevention, investigation and prosecution of crimes, as well as the judicial and correctional systems, in such a way that all these dimensions of law enforcement might contribute to guaranteeing the appropriate protection of human rights. There is a growing academic debate focused on whether or not social, economic, and cultural rights should also be considered fundamental rights which could be guaranteed through redistributive policies.³⁹ Nevertheless, few scholars have openly argued in favor of a fundamental right to effective law enforcement, which should be regarded as more important in this country given the present context of humanitarian crisis (triggered by the ruthlessness of non-state actors), and since human security is a prerequisite to the enjoyment of any other rights.⁴⁰ In other words, before considering the expansion of human rights we should be more concerned about guaranteeing the most fundamental right of human security and ensuring a genuine rule of law.

From a sociological perspective, there is an ongoing tension within individuals between the quest for the common good and the pursuit of self-interest. If the pursuit of self-interest prevails, to the detriment of respecting the rights of others, then oppressive or extractive practices tend to expand which affect the overall peace, stability, order, and prosperity of the community, and thus, the level of human security and of human development. As a result, the first sensible policy needed to achieve effective law enforcement should be to establish a new program of civic education, from elementary school onward, which would foster civic virtue and make people more aware of the importance of behaving responsibly in society so that peace, stability, order, and prosperity may more easily be achieved. Indeed, if civic virtue is appropriately fostered throughout Mexican society, a democratic form of government would not only be more feasible, but it would also demand more effective law enforcement. In fact, the expansion of civic virtue should aid Mexico considerably in overcoming its extreme social and economic inequalities since this could effectively restrain the exercise of oppressive political and economic practices which are usually the driving force behind these extreme inequalities and which are also reflected in higher public debt, lack of accountability, and political corruption.⁴¹

The weakness of the rule of law, which derives from the lack of civic virtue in society, has become convenient to the Mexican ‘establishment’ since corrupted politicians can get away with their attacks on preventive and prosecutorial agencies, and other autonomous constitutional bodies, which are then even less capable of effectively sanctioning unlawful or criminal behavior. Not surprisingly, the weakness of the rule of law is more common in autocratic regimes and in those countries that are experiencing processes of autocratization (which could be the case in Mexico), in which preventive and prosecutorial agencies, as well as independent auditing and review mechanisms, are deliberately kept weak or even deliberately conjoined with public corruption or organized crime.⁴² Therefore, one of the most significant policies that Mexico could enact to improve the rule of law and its transition to democracy should be to increase the degree of citizen responsibility towards the community. This kind of civic culture should foster not only an environment in which human rights are properly respected, protected, defended, and promoted, but an environment in which basic responsibilities towards individuals and the community at large may be fulfilled.

To improve human security and even human development in Mexico, it is crucial that people not only protect, defend and promote their fundamental rights, but that they fulfill their responsibilities towards their fellow citizens and the community at large. In fact, according to Beccaria, one of the main reasons for the imposition of legal sanctions and penalties is to awaken awareness in people regarding how their unlawful behavior can negatively impact the overall happiness of the community at large.⁴³ Consequently, law enforcement will be more effective when there is a widespread culture of social responsibility, solidarity, and subsidiarity which bolsters inclusive economic practices, as well as democratic values, within the system of government, such as transparency, accountability, and responsiveness to the legitimate requests of citizens.

On the other hand, if by the rule of law we also mean the rule of justice, then one could argue that there is no true rule of law (or true rule of justice) if people, apart from claiming their fundamental rights, are not willing to fulfil their basic duties toward other individuals or the community at large. Indeed, if we stop to reflect carefully, the enjoyment of human rights depends on the fulfilment of basic responsibilities in society, which means that each person has the fundamental right that every other member of society fulfill his or her basic obligations with regard to him or her. Otherwise it would not be possible to speak about a true rule of law (or true rule of justice) since this always implies an equilibrium between the enjoyment of rights and the fulfilment of duties.

Therefore, if individuals are focused merely on demanding the respect, protection, defense, and promotion of their own rights, but neglect the fulfillment of their basic duty of respecting the fundamental rights of other people, then the rule of law becomes increasingly weak. Instead, the law of the stronger shall become more decisive in social relationships, where the stronger is that group of people who are able to more forcefully demand the protection of their own rights, even if it would diminish the fundamental rights of others. The fulfillment of duties demands personal sacrifice, to provide others what they are entitled to, and even demands the practice of cardinal virtues, such as temperance and fortitude. Examples include the duty of working well and responsibly, or not overexploiting subordinates, etc. This is the reason why strengthening the rule of law in Mexico means to encourage the practice of not only civic virtues, but also moral virtues.⁴⁴ If moral virtues, but especially cardinal virtues (justice, prudence, fortitude, and temperance), are not sufficiently encouraged through its educative system, Mexico will become more likely to experience a rise in crime as well as violations of human rights.

Requiring the fulfilment of basic duties towards the entire political community also means advancing the rights of the Mexican state with respect to each of its citizens. Only if the rights of the entire political community are protected from arbitrary harm by individuals will human rights also be efficiently protected since the principal function of a constitutional state is to protect the welfare of its citizens. This statement can be better explained in this way: if an organization (in this case the Mexican state) is overburdened by requests by individual citizens who do not themselves contribute to the overall appropriate functioning of the organization, this organization will stop working effectively, to the detriment of its individual members.⁴⁵ This means that Mexicans should be concerned about making their entire society work fairly, so that their own human rights may be adequately protected. If the Mexican state is incapable of fostering a culture of social responsibility, solidarity, and subsidiarity, and ineffective in protecting fundamental rights through appropriate penalties and sanctions, by allowing crimes to go unpunished, for example, then human rights violations will tend to grow significantly and human security will tend to diminish proportionately in this country.

Institutional schemes that provide for power sharing among different political actors and the equitable distribution and decentralization of political power should enhance democratic governance and possibly even generate a consensus democracy in Mexico.⁴⁶ This kind of institutional design should also nurture better public deliberation regarding human rights policies since they would be inspired more by a perspective focused on the common good rather than the self-centered agenda espoused by political parties.⁴⁷ Democratic deliberation should enhance the capabilities of the Mexican state in enacting policies that could make law enforcement more competent and effective. This statement means that the more citizen participation there is in the consideration of policies related to the improvement of law enforcement, the better the quality of these policies will be, especially if the participation is informed, respectful, deliberative, and aimed at achieving the common good.⁴⁸

Enhanced accountability, transparency, and responsiveness of the Mexican system of government would also meaningfully contribute to law enforcement effectiveness against crime, especially organized crime. Furthermore, these democratic values should bolster the common good orientation of preventive and prosecutorial agencies. In addition, improved democratic controls over these agencies should discourage their extractive tendencies. Moreover, greater social accountability of law enforcement agencies should bolster their responsiveness to the demands of civil society. The current lack of accountability of these agencies mainly benefits those with more political influence and makes effective law enforcement and human security goals more difficult to achieve. Consequently, a more accountable, transparent, responsive, more democratically oriented law enforcement system in Mexico is essential to effectively defend, protect, and promote the fundamental rights of ordinary people, victims of crimes, and even suspected criminals, and will improve everyone’s security.⁴⁹

Constitutional rules that guarantee more fair competition in business activities should effectively discourage public and private oligopolies that might disrupt the free and fair market system in Mexico which is essential for supporting a democratic regime, rule of law, human security, and human development.⁵⁰ The growth of the informal economy in Mexico has led to the emergence of ‘caciques’ (political bosses) who have a decisive influence on the economic expectations of many street vendors and who are able to control, or even manipulate, them more effectively, especially in electoral terms, all of which seriously undermines the human security of these vendors.⁵¹ Effective law enforcement should also include a more fair application of the law in the economic realm where the values of impartiality and equality should also be emphasized. Consequently, one of the main instruments necessary to revitalize a prosperous free enterprise system in Mexico, as well as the effective transition to democracy, is strengthening law enforcement in the economic arena, both regulatory and criminal. If law enforcement remains weak in Mexico, the system of benefits will persist and be increasingly based on political influence or membership in the current political class. A solid law enforcement system should undermine the structure of prerogatives that this ‘establishment’ imposes on Mexican society.⁵²

It is important to recall that access to justice and due process of law should be deemed essential for the effective enjoyment of any human right in Mexico. Indeed, these rights should enable Mexican people to defend all their other rights, as well as the lawfulness of their actions or decisions, by being provided the realistic opportunity to present their evidence and arguments before a tribunal established for this purpose.⁵³ Access to justice implies that judges resolve legal controversies through a legitimate system of due process, that is, by hearing the question in controversy and objectively analyzing the evidence and legal defenses so that they may be able to apply the appropriate legal rules that address the various rights and duties which will lead to a fair resolution of the legal dispute.⁵⁴

Due process of law means the procedure is impartial, that any judge will follow the law and arrive at an unbiased ruling, in conformity with positive law, to effectively resolve the legal dispute. Enforcement of this right also suggests that no administrative authority can arbitrarily deprive someone of his or her lawful rights. In this way, rights must be withheld, and duties may be imposed, only after an unprejudiced process is followed that demonstrates that this course of action is the appropriate result and reflects impartiality and fairness in social relationships. Due process in trials mainly consists in giving parties an equal opportunity to present evidence and arguments which demonstrate their entitlement to specific rights.

Both access to justice and due process of law have been regarded in Mexico as appropriate constitutional limitations on the potential abuse of political power and as crucial parts of the system of checks and balances in the Mexican presidential system of government that is designed to guarantee the enforcement of fundamental rights.⁵⁵ In this way, the degree of efficacy in the enforcement of these specific rights is a reliable indicator of the overall enjoyment of human rights in this country. There are various legal processes through which people can demand the enforcement of their human rights in Mexico.

Indeed, the Mexican Constitution, and the international human rights laws sanctioned by the Mexican Senate and President, have enabled a diversity of means to challenge the denial of, or enforce entitlement to, fundamental rights in this country. These include the writ of amparo, the constitutional controversy, the unconstitutionality action, the diffuse control of constitutionality, and the diffuse control of conventionality, among others.⁵⁶ Nevertheless, additional means of challenge have been designed and implemented at the state level which are complimentary to these national methods and the appeals available under the Interamerican Commission of Human Rights.

In this way, Mexicans have recourse to various judicial mechanisms through which they can demand the protection of their human rights.⁵⁷ Furthermore, many Mexican states continue to implement new, refined appeals processes designed to protect and defend fundamental rights, but the scope of their application is more limited than those at the national level.⁵⁸ Despite their limited scope, these state level appeals play an important role in the enforcement of fundamental rights in Mexico and have prevented the arbitrariness of legislative, judicial, and even administrative rulings which could have compromised the exercise of fundamental rights in their respective states.

There are also supplementary constitutional appeals, quasi-judicial in nature, both at the national and state level of government in Mexico. These have also been successfully used in the defense, protection and promotion of human rights in this country. These include the human rights recommendations issued by autonomous constitutional bodies. These recommendations are usually released only after careful investigation of the facts in dispute when serious human rights violations have been discovered to have been perpetrated by administrative authorities of different levels of government in this country.⁵⁹

The controls of constitutionality and of conventionality (of the Interamerican Convention of Human Rights) have become special means of challenge that have meaningfully assisted in the enforcement of human rights in Mexico since they uphold the pro persona principle, as well as the constitutional principles of progressivity, universality, inalienability, interdependence and indivisibility of these rights, which together guarantee greater respect, protection, defense, and promotion of fundamental rights in legal disputes.⁶⁰

In addition, the Interamerican Court of Human Rights (ICHR) has published jurisprudencial criteria that guarantee greater defense, protection, respect, and promotion of human rights in every legal dispute and which all judges, tribunals, and justices in Mexico must take into consideration before drafting their final rulings.⁶¹ All these means of challenge, appeals, principles, and jurisprudencial criteria could also be employed to require the appropriate functioning of law enforcement agencies in the prosecution of ordinary crime, as well as organized crime, and to demand their satisfactory performance, accountability, transparency, and responsiveness so that peace, public order, and human security may more easily be achieved in this country.

Some final rulings resulting from a writ of amparo have become precedent and have assisted in clarifying of the responsibilities of Mexican preventive and prosecutorial agencies regarding the protection of human rights in the battle against crime and have also refined the scope of constitutional appeals and conventional means of challenge in the promotion of these rights.⁶² Jurisprudencial criteria used by the Interamerican Court of Human Rights (ICHR), which is valid in Mexico, have suggested formal limits on law enforcement agencies in their struggle against crime so that their actions and decisions fully respect, protect and defend the human rights of not only suspected criminals, but the rights of innocent people as well.⁶³ Despite these precedents and jurisprudential criteria, the following question is still relevant in Mexico: Is it possible to require, through some constitutional appeal or conventional means of challenge, preventive and prosecutorial agencies to enforce the rule of law and defend the human rights of innocent people against the disastrous effects of organized crime?

Based on one precedent established by the Mexican Supreme Court of Justice⁶⁴ which asserts that social, economic and cultural rights can be enforced through the writ of amparo, it is possible to answer this question, since this precedent helps us to argue that it is more reasonable that the lack of effective and competent law enforcement in criminal cases should be legally challenged through this type of constitutional appeal since its focus is protecting essential legal goods which can only be safeguarded through a proactive provision of the state: an effective law enforcement system. However, the writ of amparo should not be the only constitutional appeal available in Mexico to require the effective protection of fundamental rights from the ruthlessness of organized crime. Due to the critical levels of public insecurity, other appeals could serve this purpose as well, such as complaints before national and state human rights constitutional bodies, or official pronouncements from ordinary judges as part of their exercise of the controls of constitutionality and of conventionality in ordinary legal disputes.

Therefore, as a critical right necessary for protecting the life and the integrity of the individual, effective and competent law enforcement in criminal cases should be recognized as a human right enforceable through ordinary, constitutional and conventional appeals and other means of challenge. Additionally, the principles of progressivity, universality, interdependence, and indivisibility of human rights recognized in the Mexican Constitution, as well as the pro persona principle, also legitimize judicial enforcement of the human right to effective law enforcement by means of the diffuse controls of constitutionality and conventionality, since these judicial resources are aimed at extending the scope of protection of fundamental rights within ordinary legal disputes. The explicit acknowledgment of an enforceable right through constitutional and conventional appeals and means of challenge should be approached as a natural consequence of the validity of these constitutional principles, which, taken together, compel the Mexican state to guarantee the greatest respect, defense, protection, and promotion of human rights within its territory, even if this specific human right entails the legitimate use of force against criminals. Finally, effective law enforcement should also be deemed a critical human right necessary to advance peace, order, freedom, prosperity and human development in Mexico. Indeed, it is for the greatest benefit of all people living in Mexico that this human right become enforceable through judicial appeals and means of challenge since its justiciability shall effectively pressure the Mexican state to deal with the calamities produced by organized crime against the people in Mexico.

Perhaps the most positive public policy in the long term to enhance the rule of law in Mexico would be a comprehensive state approach to law enforcement, which should effectively avoid partisan use of preventive, investigative and prosecutorial agencies and should successfully foster accountability to the Mexican state and society as a whole, and not just a partisan majority in the Mexican Congress.⁶⁵ The mandate of state preventive police forces in Mexico should be institutionally based, not person based.⁶⁶ This kind of mandate reinforces a state vision of public security tasks and may improve transparency, responsiveness, and accountability of these enforcement agencies.

Additionally, more citizen participation within organizations of civil society that oversee preventive and prosecutorial agencies should also reinforce this state approach to law enforcement, which, in turn, should improve accountability, responsiveness and transparency. This new state approach to law enforcement would also encourage more deliberation regarding policies that effectively reduce the attractiveness of crime by substantially increasing the costs of breaking the law, and, at the same time, expanding the incentives to comply with it.⁶⁷ Since the cooptation of preventive and prosecutorial agencies by executive incumbents, which hinders their independence, autonomy, accountability and transparency, constitutes the most serious challenge to implement this comprehensive state approach to law enforcement in Mexico,⁶⁸ it is crucial that before implementing policies based on ‘rational choice theory’ or on ‘opportunity theories’ to deter crime, this country first transform its authoritarian approach to law enforcement so that public security tasks may effectively be directed toward strengthening the rule of law.

In other words, a more democratically controlled law enforcement system, achieved by encouraging more citizen participation in the accountability and transparency of both preventive and prosecutorial agencies, would improve the protection of fundamental rights and legal goods of ordinary people from both ordinary crime and organized crime. In the end, this kind of transformation of the law enforcement system should also improve citizen security in this country and support its overall transition to democracy. Once the authoritarian approach to law enforcement in Mexico is transformed into one which is more responsive, transparent, and accountable to society, public policies designed to deter crime and improve law and order based on ‘opportunity theories’ and ‘rational choice theory’ would also become more beneficial to this country.

Another proposal to improve law enforcement in Mexico would be the creation of autonomous constitutional bodies that oversee the performance of preventive, investigative, and prosecutorial agencies in their public security tasks. These new entities (whether national, state, or municipal) could be modeled after already existing autonomous constitutional bodies that exist at the national level in Mexico such as the Instituto Nacional Electoral (INE) (Electoral National Institute), and which could function as supervisory boards that encourage more efficient citizen control over law enforcement agencies. One positive effect of these already existing autonomous constitutional bodies, such as the INAI (Instituto Nacional de Accesso a la Información Pública), the COFECE (Comisión Federal de Competencia Económica), the CNDH (Comisión Nacional de Derechos Humanos), or the Banxico (Banco de Mexico), has been helping the growth of consensus democracy in Mexico by more fairly distributing the system of checks and balances between the different governmental powers of the Mexican state so that its public administration is more effectively oriented toward the enhancement of the rule of law within the Mexican constitutional state.⁶⁹

Nevertheless, and especially in recent times, these kinds of bodies in Mexico have become vulnerable to the colonization of party or group interests and politics which have compromised their independence, impartiality, objectivity, and legality, and thus, their accountability and transparency as well, which has a negative effect on their ability to work as part of the checks and balances of the Mexican system of government.⁷⁰ The solution to this colonization should not be to eliminate these kinds of organizations, but to improve their institutional design so that their independence, impartiality, state and citizen-driven perspective, may be effectively protected from any party or group interest.⁷¹ For this reason, law enforcement agencies, the judiciary, and penal institutions, all require competent oversight through independent and autonomous bodies that could effectively discourage their ‘capture’ by political bosses.⁷²

These autonomous constitutional bodies (or supervisory agencies) should have their councilors selected and removed through a qualified majority (66%) of the relevant legislative body, whether it be the Mexican Congress or a state congress, following rigorous criteria, so that they may not be easily subjected to the extortion or manipulation of a single party or a coalition of parties.⁷³ These bodies should also be accountable to the respective pertinent legislature and be subject to the same rules of inspection, administration, criminal responsibility and formal checks and balances of the Mexican presidential system of government.⁷⁴ These autonomous bodies should also be modeled after the Mexican Federal Judiciary Council, which is the constitutional office authorized to oversee the appointment of judges, supervise their performance, and manage their professional careers; likewise, these bodies should supervise the appointment and performance of police officers and the careers of all members of preventive and prosecutorial agencies.⁷⁵ Other formal responsibilities that these bodies (or supervisory entities) could exercise are the following:

1. To propose the budget of law enforcement agencies based on an informed and accurate analysis of their needs.

2. To monitor through reliable indicators the overall performance of these agencies.

3. To carry out constant supervisory audits over these agencies so that they may be effectively compelled to perform their duties accordingly.⁷⁶

The National Council of Public Safety in Mexico already exists, created under the Ley General del Sistema Nacional de Seguridad Pública⁷⁷ (Act of the National System of Public Safety), but this council is not an independent, autonomous, and specialized constitutional body that could enhance the necessary checks and balances related to the Mexican law enforcement system, nor does it provide for the transparency and accountability of preventive and prosecutorial agencies. Nonetheless, this Act does represent a crucial step forward in the design of new, autonomous, constitutional bodies that could reinforce a state approach to public security in Mexico.⁷⁸ The existing National Council of Public Safety is composed of three main commissions: a) data, b) certification and accreditation, and, c) crime prevention and citizen participation.⁷⁹ All of these commissions could be handed over to our proposed supervisory body at the national level, retaining many of their original responsibilities, but with more influence, independence, and autonomy from those authorities they oversee.

The problem with the present National Council of Public Safety is that its institutional design can easily lead to conflicts of interest since its members can act as accusers, judges, and defendants at the same time. A new National Council of Public Safety, as an autonomous constitutional body, should resemble the INE, which possesses a General Council that makes decisions collectively.⁸⁰ This new constitutional body, at the national level of government, should also resemble the Mexican Commission of Human Rights (CNDH), which possesses a consultative council, a general secretary, and several appointed positions / appointed officials / visiting officials.⁸¹ Thus, the consultative council of this proposed supervisory body should be comprised of honorable and knowledgeable citizens that are able to efficiently review the work of its General Council to guarantee its impartiality and independence.

The visiting officials of this new Council of Public Safety should assess the work of law enforcement agencies using specific standards relating to performance, behavior, loyalty, and discipline. The visits of these officials should keep preventive and prosecutorial agencies focused on fulfilling their responsibilities and duties and prevent other government institutions, especially municipal, state, and federal executives, from interfering in law enforcement tasks and from compromising the independence, autonomy, impartiality, objectivity, and professionalism of these agencies. These officials should also aid this new autonomous body in preparing reports to be submitted to the Mexican Congress so that it can monitor the state of law enforcement at the national level, state, or in a municipal levels when necessary.⁸²

These reports should also assess the level of training and the qualification of police officers, their career development, the level of coordination among law enforcement agencies, and the degree of social participation in law enforcement tasks. To improve the performance of the public security apparatus, both ordinary citizens and police officers should be able to present complaints against law enforcement authorities for failing to carry out their duties appropriately. There should also be coordination between this new constitutional body at the national level and the Mexican Commission on Human Rights, as well as with other autonomous bodies, such as the INAI, the Federal Judiciary Council, or the INE, so that they can support each other in the fulfilment of their corresponding responsibilities and thus foster the rule of law in their respective areas.

For example, if a citizen submits a complaint before the CNDH due to misconduct by law enforcement authorities, the CNDH should notify this new National Council of Public Safety about the complaint so that both organizations can support each other in resolving it based on their respective areas of responsibility. To this end, this new constitutional body should require the authorities accused of misconduct to produce a thorough report regarding the subject of the complaint so that they are aware of the reasons and motivations behind the challenged actions or omissions. This procedure should strengthen the degree of responsiveness, accountability, and transparency of law enforcement agencies to the Mexican state and society.

However, these new constitutional bodies, at the national, state and even municipal level, should also, whenever possible, use alternative means to resolve conflicts, such as mediation and arbitration, to encourage solidarity, subsidiarity, and a culture of peace within law enforcement agencies, as well as between citizens and the authorities. Just as the Federal Judiciary Council does,⁸³ these proposed bodies should have their own unit of administrative responsibilities to try all those preventive and prosecutorial personnel that may be accused of administrative misconduct. These new bodies should also monitor the functioning of the crime prevention systems, the training of police officers, the independence and autonomy of preventive and prosecutorial agencies from executive power, as well as their accountability.

These new autonomous bodies should themselves be subject to accountability as well and be obliged to periodically send reports to the legislature which would reinforce their independence and autonomy with regard to the executive power.

Mexico needs a constitutional amendment that effectively requires states’ law enforcement agencies to become more engaged with and supportive of the federal government’s fight against organized crime.⁸⁴ The concentration in the Mexican General Attorney (FGR) of the responsibilities involving combating organized crime has, paradoxically, increased its vulnerability to organized crime. It has also encouraged the penetration of organized crime into the states’ preventive and prosecutorial agencies as well as they attempt to interfere with the Mexican General Attorney’s investigations into these criminal organizations.⁸⁵

A democratically oriented law enforcement system in Mexico, through the creation of these new autonomous constitutional bodies could become the most effective driver for improving the rule of law, human security, and human development in this country. These bodies should also encourage situational crime prevention, since based on rational choice and opportunity theories, human behavior is driven by a rational assessment of costs and benefits, which means that if the price of carrying out a crime surpasses its potential rewards, criminals will ordinarily refrain from engaging in it.⁸⁶ These new bodies should design and implement new policies that reduce the attractiveness of crime by increasing its costs so that potential criminals would perceive such conduct as risky, less profitable, and less excusable to a legal tribunal. For example, if the number of policemen in any municipality or state of Mexico were increased, were better equipped and trained, had more and better surveillance vehicles, weaponry, cameras, salaries, and systems of accountability, etc., the commission of crimes would be effectively discouraged in such places.

These new bodies should discourage those factors that increase the rewards and reduce the cost of committing crime at the local level in Mexico, such as: a) easy escape, b) time needed to commit the crime, c) possibility of not being identified, and, d) the possibility of not being arrested.⁸⁷ However, enhanced technology, infrastructure, organization, and logistics of preventive police forces, would substantially increase these ‘costs’ and sharply reduce the ‘benefits’ of committing crime. Indeed, the improvement of situational crime prevention, by providing effective incentives to comply with the law, and by increasing the personal efforts and negative consequences for breaking the law, should be greatly encouraged by these new constitutional bodies in Mexico.⁸⁸

These constitutional bodies should also manage the distribution of resources, technology, and qualified personnel within preventive agencies. Additionally, to improve the investigation of crimes, it is also vital that these autonomous bodies promote larger budgets, more resources, more qualified personnel, better facilities and logistics, and upgraded technology for prosecutorial agencies.

These new constitutional bodies should first improve on some of the internal aspects of preventive, investigative and prosecutorial agencies to achieve a more effective law enforcement system in Mexico, for example:

1. A system of career development to upgrade the performance, professionalization, and dignity of police officers.

2. Better salaries, training, and equipment officers.

3. Better coordination between federal, state, and local agencies.

4. The development of reliable indicators that accurately measure the efficiency of their respective funding levels.

5. The creation of standardized systems of operation.

6. Better distribution of their overall budget.⁸⁹

In the case of the judiciary, it is essential to encourage increased independence, autonomy, and competence through permanent training, and to supply it with a larger budget, better facilities, and more qualified personnel. These goals could also be encouraged by the Consejo de la Judicatura Federal (Federal Judiciary Council) and pursued before the Mexican Congress and the Federal Executive Power.

Lastly, regarding the penitentiary system, it is imperative that these new constitutional bodies encourage the improvement of penal facilities, the increase of its budget to make prisons places that demonstrate respect for the human rights of convicted and sentenced criminals, more efficient training of its personnel regarding human rights, enhancement of its current logistics and surveillance technology to avoid riots or disturbances within penal institutions, so that this system may be able to foster the successful reintegration of convicted and sentenced criminals into society.⁹⁰ Combining all of the foregoing policies should contribute to improving law enforcement in Mexico. However, unless the authoritarian practices within the law enforcement system are transformed, these policies will not be able to improve the rule of law or human security, nor will they be able to defend the rights of those accused of committing crime or the innocent victims of organized crime.

An effective law enforcement system should be regarded as a basic human right in Mexico. Such a system is not only necessary to overcome the humanitarian crises resulting from the ruthlessness and violence of non-state actors, but also to increase the level of human security and human development in this country. Furthermore, it should be considered one of the most fundamental rights by the Mexican state since it implies an institutional design that effectively guarantees all other human rights. It would make no sense for the Mexican state to formally acknowledge human rights if it remains institutionally incapable of guaranteeing their actual fulfillment.

Indeed, the extent of impunity in Mexico exacerbates security problems since fundamental rights are constantly violated by non-state actors and authorities alike without any effective deterrent or incentive to prevent such violations. Consequently, effective law enforcement should be advanced as a fundamental right in Mexico to guarantee the protection of the individual in all circumstances, whether in daily life or official proceedings, such as trials, administrative procedures, or exercising a petition right. To this end, specific reforms to the law enforcement system of Mexico have been proposed in the present article, reforms that could guarantee a public security system that genuinely protects and defends all human rights and thus improves the level of security in this country.

These proposals are based on a state approach to public security which could be the best strategy to overcome the clientelist and authoritarian tradition in law enforcement that has weakened the rule of law and has encouraged impunity and ongoing violations of human rights in Mexico. This enhanced state approach to public security could also prompt a transition to democracy in Mexico and increase the level of economic, social, political, and human development since it should encourage the rule of law (or the rule of justice) in all of these areas. Perhaps the most important contribution of this article was to identify the fact that an effective law enforcement system is fundamental for the protection of individuals against threats to themselves and their rights. A better system for protecting fundamental rights, through effective and competent law enforcement, can guarantee a minimum threshold of human security that may enable people in Mexico to more confidently pursue their own economic, social, political, environmental, cultural, and human development. Competent and effective law enforcement is also extremely important to improve all other aspects of security in this country, whether of individuals or of the Mexican constitutional state itself, since they also depend on a strong foundation of the rule of law.