The reform initiative to transfer the operational and administrative control of the National Guard (GN) in the Secretary of National Defense (Sedena), sent by President Andrés Manuel López Obrador to the Chamber of Deputies, contradicts the Constitution, so if it is approved in the terms in which it was presented, it will surely be challenged before the Supreme Court of Justice of the Nation. (SCJN)specialists raised.
On the morning of this Saturday, September 3, and after fifteen hours of discussion, the Chamber of Deputies approved, in general and in particular, the presidential initiative to incorporate the National Guard into the Sedena. deputies approved with 264 votes in favor212 against and 1 abstention, the amendments to various provisions of the Organic Laws of the Federal Public Administration, of the National Guard, Organic of the Mexican Army and Air Force, and Promotions and Rewards of the Mexican Army and Air Force, in matters National Guard and Public Security.
The reforms proposed by President Andrés Manuel López Obrador did not undergo any modification and sent to the Senate for constitutional purposes.
According to the experts consulted, it is that the National Guard will conclude the six-year term of President López Obrador without having the necessary legal elements that allow it to fulfill the functions for which it was created in accordance with the law.
The reform is an unconstitutional decree initiative because contradicts article 21o which states that “public security institutions, including the National Guard, will be of a civilian nature,” said Blanca Ivonne Olvera Lezama, an academic at the National Autonomous University of Mexico (UNAM) and researcher at the National Institute of Criminal Sciences (Inacipe).
Hay an inconsistency saying, as stated in the explanatory memorandum of the initiative, that its objective is to strengthen the institutional consolidation of the National Guard as a permanent, professional and disciplined police force, attached to the Secretariat of Security and Citizen Protection (SSPC), when what is intended is that it be under the operational and administrative control of the Ministry of National Defense (Sedena), said Olvera Lezama.
In the opinion of the author of the books National Guard Act 2019, National Guard Law and its regulations 2019 y The legitimate use of forceamong others, what is really intended is to end the illegality in which this corporation currently operates, in aspects such as the administration of resources to pay their payroll.
María Elena Morera Mitre, president of the organization Common Causeconsidered that the haste that the president has shown in transferring the management of the National Guard to the Army is explained because currently “it is a disaster.”
In fact, Morera said, 80% of its members operate as if they were “aviators”, since they work in one unit and get paid in another. Other irregularity: several of their barracks they belong to the Secretariat of Security and Citizen Protection (SSPC), but they are built on land owned by Sedena.
For this renowned activist, the delicate thing is that the head of the federal Executive has decided to transfer the management to Sedena in an unconstitutional manner, so once the initiative is approved in Congress, it will surely be controversial before the Supreme Court of Justice of the Nation (SCJN).
The problem is that, by the time the Court decides, a long time will have passed and it will be very complicated “or almost impossible” for him to return from the military to the civilian sphere, Morera said.
The effects on the population will be those caused by the military when they act in public security tasks, for which the uniformed officers are not trained, and the commanders will be guilty of this, having created a completely unconstitutional institution.
He said that there is also the risk that more human rights violations will be committed and, although the initiative’s statement of reasons indicates that these types of acts have decreased, this is because they have worked much less than the defunct Federal Police.
“It is a shame that this government forces the military to do tasks that do not correspond to them and leaves local police and prosecutors precarious, which is the reason why today in the country we have more violence and crime and many regions taken over by the crime that is the one who decides the life of the people”, said Morera.
Due Process Violations
Since the National Guard began operations, it has worked in tension with the criminal framework, since the National Code of Criminal Procedures (CNPP) was not reformed to contemplate it, said Olvera Lezama, from Inacipe.
The members of the National Guard are already in charge of public security and, consequently, of the investigation of crimes, which begins with the knowledge or denunciation of the fact, followed by the obtaining of indications and evidence that can lead to criminal responsibility. .
To record and follow up on this entire criminal procedure, the Public Ministry must be informed, through the Homologated Police Report (IPH)but this one is exclusive to policemen.
Article 132º of the National Code of Criminal Procedures establishes that the obligation to issue “reports” is exclusive to the police in criminal proceedings, leaving out the elements of the Armed Forces and the National Guard.
A similar situation occurs with the National Protocol for Action of First Responders, which specifies that the Armed Forces in activities of cooperation with the authorities responsible for public security under no circumstances assume the quality of Police First Responders, said Olvera Lezama.
The soldiers commissioned to the National Guard do not have the obligations contemplated in this protocol and consequently are legally prevented from filling out investigation reports to Public ministry.
The problem is that irregular way in which the National Guard operates, which goes against due process and, therefore, against human rights and, in a judicial investigation, their participation can be invoked as invalid.
The initiative sent to Congress by President López Obrador contemplates reforms to the Organic Law of the Federal Public Administration, the Law of the National Guard, the Organic Law of the Mexican Army and Air Force, the Law of Promotions and Rewards of the Army and Air Force Mexicans and in matters of National Guard and Public Security.
Strengthen local police
According to the National Guard report. 3 years of militaristic definition, carried out by the National Guard Observatory of Common Cause, the indiscriminate and unregulated use of the Armed Forces in these functions implies a serious risk for citizens and for the Armed Forces themselves.
Under the proposed amendment, is set on March 26, 2024 as the date for the Armed Forces to withdraw from the streets and stop carrying out the public security tasks that they are now entrusted with and obligations are established for the states to strengthen the state and municipal police, but that has not been done.
According to data for 2020 from the Executive Secretariat of the National Public Security System (SESNSP), 30 states delivered a diagnosis on their police, missing Baja California Sur and Zacatecas; 27 submitted their strengthening program, missing Baja California, Baja California Sur, Jalisco, San Luis Potosí and Zacatecas, and 20 submitted their budget proposal, missing Aguascalientes, Baja California Sur, Campeche, Mexico City, Coahuila, Colima, Jalisco, Michoacán, Nuevo León, San Luis Potosí, Veracruz and Yucatán.
As of February 2022, less than 30% of National Guard members (30,199) had the Single Police Certificate (CUP) despite being a legal requirement.
The Common Cause report highlights that, from December 2018 to April 2022, the Secretary of Defense, the Secretary of the Navy and the National Guard accumulated 2,510 complaints for alleged human rights violations. These complaints are mostly related to cases of alleged torture, forced disappearances, cruel, inhuman or degrading treatment, and arbitrary detentions.
Of the more than 8,000 people detained by the National Guard, only 14 were detained through intelligence tasks.
The National Guard has 113,833 troops deployed in 266 regional coordinations; 73,805 (64.83%) come from Sedena; 16,792 (14.75%) from Semar and 23,236 (20.41%) from the former Federal Police.
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