A Constitution Corrupted

The Mexican Constitution, this year celebrating its hundredth anniversary, was once lauded as one of the most progressive in the world. But political leaders have continued to chip away at its gains.

March 8, 2017

A military band in Puebla commemorates Constitution Day on February 6 of this year. (Timothy Neesam/ Flickr)

It is easy to understand scholarly and progressive interest in this year’s centennial of the Russian revolution, but harder to explain why there is little apparent enthusiasm for an anniversary that is arguably more important – that of Mexico’s 1917 constitution, signed on February 5, 1917. In fact, Mexico’s constitution provided the model for the first Soviet constitution. Its failure to inspire global interest may reside in an uncomfortable question facing the country: whether it should be celebrating or mourning.

The Constitution has been revered by constitutional scholars for being the first to enshrine social rights. But relentless revisions by politicians have culminated in an assault on the last vestiges of its progressive content by President Enrique Peña Nieto, leaving it all but moribund.

Mexico’s centennial has not been ignored in official circles, of course, with a high-powered committee of worthies spearheading a formal program of events to mark the anniversary. But outside the corridors of power, some commentators have pronounced the constitution as a dying being, academics liken it to an elderly recipient of multiple transplants, and surveys suggest many Mexicans know little about it or believe that it no longer responds to their needs.

Such sentiments reflect the grim reality that the hopes expressed in the celebrated charter – in its day a beacon for Mexico, Latin America and the world – have been subverted. This is painful in 2017: as Mexico struggles with unprecedented xenophobia from its northern neighbor, violent criminality, debilitating threats to its sovereignty, and rampant corruption, the spirit of unity under which the constitution formed is more necessary than ever.

The Constitution has been transformed through an endless process of reform that has neutered its intent: since 1917 it has been amended a breathtaking 703 times. While this is by no means a modern phenomenon – by the 1940s some Mexican historians were already pronouncing the revolution dead – the pace of constitutional change has accelerated dramatically in recent decades. Since 1982, there have been 490 reforms (70 percent); and more than half of the reforms in that 35-year period have occurred under the last two presidents (Felipe Calderón and Enrique Peña Nieto).

Promulgated in February 1917 by the triumphant revolutionary leader Venustiano Carranza, the constitution took effect on May 1 of that year, containing 136 articles. What made it special was that it was the product of Latin America’s first modern revolution and the first in the world to grant citizens an array of social rights, giving it the character of the first modern socialist constitution.

To understand its spirit, we need to examine the forces that battled for supremacy from 1910–17: Emiliano Zapata’s southern, peasant army had a coherent revolutionary program based on a clear demand for the restoration of communal lands; Francisco “Pancho” Villa’s northern army made up for its lack of a program with a zeal for popular justice; and Carranza’s constitutionalists, ranchers and self-made men, were liberals and conservatives resentful at their exclusion from power under the dictator Porfirio Díaz.

The constitution’s final draft, ratified in Querétaro, reflected, above all else, a pragmatic truce between classes whereby Carranza accepted social reform as the price of legitimacy for his new regime.

The outcome addressed the most pressing issue at the heart of the revolution in the form of Article 27, which asserted Mexican national control over all land and resources; restricted land ownership by the church and foreigners; launched a program of land redistribution through communal ejidos; and transformed the appalling conditions endured by agricultural workers.

Proclaiming sovereign control of the land in this way was not a rhetorical flourish: it responded to the loss of swathes of Mexican territory to U.S. landholders, painstakingly researched by John Mason Hart in his classic book Revolutionary Mexico (1987).

Article 123 of the Constitution, meanwhile, established the most progressive labor legislation in the world at that time, guaranteeing a minimum wage, the right to strike and collective bargaining, an eight-hour day, employers’ liability and workers’ insurance, an end to child labor, equal pay regardless of sex, and maternity leave.

These popular guarantees assumed the need for an interventionist state to defend them. As a result, the Constitution gave form to a “third way” that was neither Soviet socialism nor U.S. capitalism. Articles 27, 73, and 123 authorized state intervention in the economy, gave the state the right to regulate private property in the public interest, and gave it the power to regulate relations between capital and labor.

Yet it was the constitution’s character as a compromise that would be its fault line, because the political order that emerged from the revolution did not transfer power between classes, as many had hoped, and was essentially led by the bourgeois. Articles 27 and 123 clashed with the interests of this new elite. Carranza repressed organized labor, and land reform fell into abeyance then became a device of the authoritarian Partido Revolucionario Institucional (PRI) for controlling the countryside. This was epitomized by the execution in 1962 of Rubén Jaramillo, a latter-day Zapata, who led peasants in occupations of lands previously granted as ejidos that had been illegally occupied by cattle ranchers with the tacit approval of the government.

But if the betrayal of the constitution had begun early, its rout began in earnest in the 1980s under neoliberals offended by its social guarantees and statism. Miguel de la Madrid (1982-1988) inaugurated this era and paved the way for his successor, the Harvard-educated Carlos Salinas de Gortari (1988-1994), to take a scalpel to Article 27 in 1992 in preparation for Mexico’s accession to NAFTA.

Salinas saw the protections afforded communal property as a barrier to investment incompatible with his efforts to court the U.S. He thus modified Article 27 to allow for private ownership of ejido lands and end any further distribution of land. Since then, this landmark clause has also been amended by Calderón and by Peña Nieto, a politician often seen as a Salinas protégé, to open the energy sector to private investment.

By repudiating one of the few gains won by communal landholders in the revolution, the reform of Article 27 had huge psychological implications, swelling the ranks of the Zapatista guerrilla army (EZLN) that rose up in Chiapas in 1994.

Like PRI presidents before and since, Salinas’s motives were partly personal: he saw his reforms as a means of returning to the presidency in 2000 – provided his successor could amend another great plank of the constitution, a ban on re-election. It was a vain illusion.

Salinas also showed contempt for constitutional protections for labor, mindful that under NAFTA, foreign corporations would flock to the union-free export-processing sector (maquiladoras). While Salinas and other proponents of NAFTA claimed that this would develop Mexico’s industrial sector, it instead created low wage, low skilled jobs in highly exploitative conditions in which federal labor law was perverted in multiple ways. Maquiladoras continue to be at the heart of struggles by labor movements against violations of basic rights.

NAFTA has cast a dark shadow over the guarantees promised in 1917. Two million small farmers were driven off the land as subsidized U.S. corn flooded into Mexico. Foreign investment failed to generate sufficient jobs for those displaced, unemployment rose, and those jobs that were created paid poorly: real wages grew by just 2.3 percent between 1994 and 2012. It is small wonder that desperate farmers went north, with migration to the U.S. doubling after 1994.

Furthermore, whereas left-progressive governments across Latin America have managed to lessen poverty, Mexico has fallen behind, and at least 55 million of its citizens now living below the poverty line. The implementation of NAFTA and radical market reforms in Mexico since the 1980s categorically failed to reduce persistently high levels of inequality, which have largely stood still since before the 2008 financial crisis. Subsidized U.S. imports pushed up food prices, especially that of the national staple tortillas, and recent price hikes will exacerbate growing food poverty. So many Mexicans face hunger (at least 10 percent of the population suffers from inadequate food access and 8,500 die every year as a result of malnutrition), that in 2011 Articles 4 and 27 of the constitution were amended to guarantee the right to food, and in 2013 Peña Nieto was forced to launch a “National Crusade against Hunger.”

NAFTA has also gravely damaged Mexico’s sovereignty by increasing its economic dependency on the U.S. (80 percent of Mexico’s exports head for the U.S., whose share of Mexican imports is about 47 percent), by preventing the state from regulating private property in the spirit of the constitution, and by degrading the country’s environment.

However, far from learning lessons about the damage caused by undermining the promises of the constitution, Peña Nieto has intensified the assault on stage regulation. His education reform through amendments to Articles 3 and 73, setting the scene for de-unionization and privatization, responded to the demands of multilateral bodies, U.S. think tanks and the corporate Mexican education reform lobby. Resistance among teaching unions has disrupted education and provoked a disproportionately violent crackdown.

Peña Nieto has also continued Salinas’s assault on Mexico’s cherished resources. In 2013 he trashed the original intent of Article 27 through amendments to open the oil, gas and electricity-generation sectors to foreign investment. These reforms also had an anti-union logic, changing the legal status of the state oil monopoly PEMEX and electricity commission CFE and thereby curtailing labor inputs in how they are run. PEMEX and the CFE are now considered equal in status to private companies, meaning that their unions lose their special status, including the right to participate in decisions as members of administrative councils. 

In September 2012, Congress enacted sweeping labor reforms to make it easier for employers to ignore worker rights – a move seen as a significant victory for Peña Nieto’s incoming administration, who had backed the reforms. Just as Peña Nieto has been quick to chip away at workers’ rights, he has been slow to comply with international standards on collective bargaining. It was not until October 2016 that the Senate approved an initiative to amend Articles 107 and 123 of the constitution to ease the grip of corrupt charro unions – labor associations obedient to the government and employers, and hence traditionally loyal to the PRI – long a core demand of the international labor movement.

Insatiable as ever, Peña Nieto has even overturned the greatest taboo in Mexican politics: re-election, spearheading modifications to 29 constitutional articles in 2013 to allow consecutive re-election for some political positions in the ultimate betrayal of the principle that sparked the Mexican revolution in 1910: “Sufragio effectivo, no reelección.” (For effective suffrage, no re-election). It is almost certainly only matter of time before this is extended to the presidency.

If Mexico’s political elite have shredded the social and political guarantees of the 1917 constitution, the country’s worsening human rights situation demonstrates how they also continue to ignore its other protections.

In June 2011, sweeping changes were made to human rights legislation through modifications to Articles 1, 3, 11, 15, 18, 29, 33, 89, 97, 102, and 105 to bring them in line with international standards and incorporate the pro homine principle, in response to the appalling impact on human rights of the Calderón administration’s bloody “war on drugs.”

Yet state abuses are worse than ever. Human Rights Watch says that under Peña Nieto, security forces have been implicated in repeated violations – including enforced disappearances, extrajudicial killings and torture. The government’s inability to resolve high-profile cases like Ayotzinapa, with evidence of law enforcement and federal government collusion - has underscored endemic impunity and corruption. Security forces routinely practise torture and some judges continue to disregard constitutional prohibitions on using evidence obtained through it. 

A major culprit is the military, and by July 2016 the National Human Rights Commission (CNDH) had received almost 10,000 complaints of army abuse since 2006 – including more than 2,000 during Peña Nieto’s administration. A debate on the armed forces’ internal security role has focused on the constitutional provisions outlining their mission. It is worth mentioning that the use of military forces in policing functions as a result of this “war” is also explicitly prohibited in the Constitution. Yet despite Peña Nieto’s enthusiasm for rewriting the constitution, he has not made this a priority even though reform is considered urgent. Meanwhile, military powers are growing: in 2016, Congress permitted the armed forces to search and seize property and to conduct electronic surveillance.

Peña Nieto’s rule underlines the PRI’s historical culpability in rendering meaningless the individual protections and social guarantees enshrined in Mexico’s fabled 1917 constitution.

Of the 703 constitutional reforms since 1921, 536 (76 percent) have been engineered by presidents of the party formed in 1929. PRI neoliberals have been the most rapacious: prior to 1982, PRI presidents amended on average 18 articles during their term in office; since then, they have amended an average 87. For their part, PAN presidents Vicente Fox and Calderón amended 141 articles during their sexenios (2000-2006 and 2006-2012).

Yet the Constitution still matters: in its declaration of war against the Mexican government in 1994, for example, the EZLN justified insurgency by citing Article 39: “The people have, at all times, the inalienable right to alter or modify their form of government.”

Moreover, the noble aspirations of the 1917 charter – to establish a social accord expressing the popular desire for a united, dignified and fully sovereign country – remain as valid today as they did 100 years ago.

Those aspirations are reflected in growing opposition to Peña Nieto and the PRI that is uniting diverse sectors of civil society against neoliberal reforms, if not assuming the character of a formal constitutionalist movement like that which took Carranza to power.

Teachers in some states have vehemently resisted the education reforms and raised international awareness about violations of human rights and civil liberties. Organized labor is active through groups such as the Tri-National Solidarity Alliance (TNSA) that has campaigned for union democracy and against the repression of campaigners. Campesino organizations, students and social groups are joining forces in popular coalitions against government policies.

Popular unrest has begun to boil over, with a 20 percent hike in fuel prices sparking the “gasolinazo” in January – a wave of protests fueled by corruption scandals, a falling peso and rising inflation – and forcing the deeply unpopular president to plead for understanding.

The political opposition is also finally making headway in opinion polls as the countdown for the country’s 2018 elections gets under way. After having missed Latin Ameria’s ‘pink tide’ of progressive governments, Mexico could be a prime site for a revival of the left confronting the neoliberal bandwagon as the rest of the region swings right.

At the age of 100, the 1917 Constitution may be gravely ill – but it’s not dead yet.

Gavin O’Toole is a writer and journalist who has lectured in Latin American politics at the University of London. His books include The Reinvention of Mexico (2010) and he edits the Latin American Review of Books.      

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