Discrepancies around the Internal Security Law
- Moderator Manuela Camus Bergareche
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Reception: February 28, 2018
Acceptance: March 9, 2018
In December 2006, the president of Mexico, Felipe Calderón, declared the “war against drugs” and called out the Army to confront criminal groups in the streets. This public security task does not correspond specifically to the functions of the Armed Forces and, among other consequences, has led to a disproportionate increase in homicides and disappearances in the country. Despite this, the Internal Security Law is presented, which institutionalizes this militarization process and justifies, regulates and legalizes the role of the armed forces in the fight against organized crime. Its enactment was delayed in recent years until its accelerated formalization at the end of 2017 - in the prelude to the 2018 presidential elections. In the face of national and international opposition and the claims of unconstitutionality that this law raised, it has been suspended while it is validated in the Supreme Court of Justice.
The possibility of an Internal Security Law reveals the disagreement between the Army and the executive with society, intensifying fears, discussions and conflicts. There are many questions that arise in this context and we hope that the guests of this Discrepancies section will contribute to animate the debate, perhaps to clarify it.
The Internal Security Law, what model of State does it speak of?
The Internal Security Law establishes, for practical purposes, a parallel constitutional regime in Mexico. It is a model of the State that we can call “discretionally centralized and authoritarian”. The Law authorizes the Executive to, at its discretion, put the constitutional system in parentheses and deploy the repressive apparatus of the federal government wherever it decides, for the time it decides and for the purposes it decides, without counterweights and without accountability. Our Constitution establishes a federal regime based on the principle of the division of powers. In contrast, the Internal Security Law will allow the Executive to operate indefinitely in those parts of the territory where it unilaterally decides, without the counterweights that the existence of the other Powers of the Union implies and without the limitations that the distribution of powers implies. between the three levels of government established by the Constitution. The militarization that we have experienced until today - undoubtedly unconstitutional, at least since 2008 - has been possible thanks to the active or passive participation of state and municipal governments, and the passivity of the judicial powers. The Internal Security Law empowers the Executive - and even, in broad and indeterminate cases, the Armed Forces directly, without the need for a presidential decision - to exercise its authority without the consent or collaboration of the local authorities. This implies a profound transformation of our constitutional system and the historic defeat of federalism in Mexico.
In a very real sense, the Internal Security Law represents the possibility of suspending even constitutionalism. Over the last two and a half centuries, constitutionalism has sought to limit the exercise of public power by disaggregating the spaces for decision and exercise of power (federalism and division of powers) and granting citizens an untouchable scope for the authorities (the Fundamental rights). The second of these pieces, the system of fundamental rights guaranteed by the legal order, depends on the proper functioning of the division of powers. If the first fails, the second fails. By allowing the Executive to use the repressive apparatus of the State in a discretionary and indeterminate manner without adequate counterweights to contain or control the exercise of that power, fundamental rights become declarations without real mechanisms to be effective; they become wet paper rights, with little more than symbolic force. With the Internal Security Law, the entire constitutionalism is under siege.
PI suggest calling it a patriarchal necropolitical state. This "policy of death", this "right to kill" (Achille Mbembe), of giving life or death to populations –especially those who are denied the status of legal subjects and are easily substitutable– was revealed formally in 2006 and emanated from the State, other non-state powers and common crime. In a nexus with the patriarchy (Kate Millet), a warlike social order has been established that takes into account the multiple structures of oppression against women and men who lack power. This connection of powers has favored a state of exception and a state of siege. The hierarchical populations with lower value, from sex, genders, social class, ethnicity, racism and place of origin, have been constrained in geographical spaces in which the application of the law is a chimera. In these areas, there are military orders and diffuse powers that keep them as targets of the politics of death. With this law, the Mexican State recognizes that it has a citizen security problem; However, by privileging military action, it uses the same response that will further aggravate and slow down the democratic process. It ignores the political, creative, inclusive and enriching actions that a State must reflect and carry out together with civil society. Nor does he understand the risk involved in facing the violence that accompanies us from a one-dimensional approach that only requires the presence on the streets –but also in private spaces– of the military agents. It ignores other structural dimensions in the continuum of violence: the capitalist socioeconomic system, which provokes a war against drugs that has been imposed on us from abroad, macro-criminality, corruption, impunity, a violent masculinity model and enormous social inequality. that increasingly opens the gap between those who have the most and those who have very little or almost nothing to sustain a dignified life.
Lhe construction and representation of organized crime as a national security problem has transformed the Mexican State into a police state that, through the Internal Security Law, acquires extraordinary powers to regulate social order. Undoubtedly, this Law not only broadens the powers of the armed and federal forces to confront violence, despite the great human costs caused in recent years. More significantly, the Law translates into the deployment of a securitization strategy aimed at turning any problem or social conflict into a security object. It is a device of power that opens the door to all possibility of surveillance and invasion of social life, from militarization and / or policing to intelligence. The securitization of social life imposes limits on democracy and, in this sense, evokes the exception as a regular technique. Therefore, the Law is designed as a device and a strategy that increase and centralize the powers of the State, with the risk of shaping a new post-authoritarian regime. When this or that problem is defined as a threat or risk to national security, we are undoubtedly facing the extension of a secure way of life, in which human rights are the first element at stake. Additionally, the risk and the threat are located “outside” the State and are objectified in geographic areas and particular social groups, regularly poor and marginal, leaving intact political crime and transnational networks of corruption, money laundering, etc. In short, the Internal Security Law certainly regulates the role of the State, but the imperative of national security constitutes in another way a police State that, through securitization strategies (military and police plans, militarization of order, impersonation of legal functions, government programs, federal intervention, inter-institutional coordination, intelligence, reports, etc.) will deepen a process of monitoring public and private life, in fact attacking the most elementary principle of universal law: freedom.
What implications will its application have regarding respect for human rights and in terms of justice for the thousands of civilian victims of the “war on drugs”?
TO Over the past twelve years we have seen a massive explosion of human rights violations at the hands of the authorities. Today we have a considerably greater number of "elements" belonging to the repressive bodies of the State deployed throughout the national territory carrying out civil patrol work than we have ever had in peacetime. By not having effective civil controls that contain or monitor their actions, it is natural that a greater number of human rights violations are recorded in absolute terms. In the absence of serious and systematic investigative tasks on the part of state and federal prosecutors, it is difficult to know how frequently human rights are violated by the authorities in Mexico. However, the data we do have - which is surely a significant underreporting of cases in which human rights violations occur - indicate that not only have human rights violations increased quantitatively, but also qualitatively the behavior of human rights violations. Public forces - civil and military - have deteriorated considerably since the "war on drugs" was declared. Some indicators - such as case fatality rates - point to the probable and frequent disproportionate use of public force, or even the deliberate abuse of force - cases such as extrajudicial executions. These, however, must be complemented with other data that speak of the deterioration of the practices of the public force, such as the habitual use of torture. The overwhelming majority of the existing data points to a true epidemic of human rights violations in Mexico. The Internal Security Law would facilitate these practices, by removing legal obstacles to the uncontrolled use of public force, without regulating it (although its apologists maintain that the existence of the Law by itself is regulation, its content does not establish specific limits but permits generic). Its very approval is a signal to officials who carry out operational tasks, legitimizing this deterioration in practices. This signal, surely, will be reflected with greater frequency and intensity in the abuse of the public force, which implies more and more consistent violations of human rights not only where declarations of affectation to internal security are made, but where the forces Military men carry out what the Law calls “permanent actions”, which do not require such a declaration.
It is important to remember that, twelve years after the continuous presence of the army in citizen security tasks, a significant number of international organizations have pointed out the serious violations of human rights, such as forced disappearances, torture, sexual torture of women and extrajudicial executions. These crimes against humanity have become a widespread practice and are a clear example of a failed presence and a lack of military strategy. Something similar occurs with the institutional weakness of the three powers of the State –some in collusion with the diffuse powers of criminality–, which remain absent and indolent before the laments of the thousands of victims who in this context of war violence demand justice. Impunity prevails throughout the country in the face of the dismantling of the State that does not prevent, do not investigate, do not sanction, and much less make reparation. Mexican citizens suffer, in a different and unequal way, a violation of the rights over their body, the rights over the use and enjoyment of spaces, the rights over their heritage and the rights of a political subject who exercises his citizenship in the public space. In this Mexico, with the vicissitudes of its political and economic system, the military presence will not reverse these losses; on the contrary, they will intensify geographically and will become a strategy of citizen control and a greater erosion of justice. Faced with this situation, it is more likely that economic, political, military, macro-criminal power and common crime will be strengthened - where in a significant number of segments of society, we find families that participate and / or protect members who commit crimes and enjoy the profit - devastating the lives of women and men.
In general, all security practices are inversely related to the practice of democracy and human rights. Huysmans points out that democracy suffers a political limit because of the imperative of security, not only because human rights can be violated in the name of security, but also because the practice of security inherently organizes political and social relations around enemies, risks, fears or anxieties (Huysmans, 2014: 4). In this sense, when we observe the Internal Security Law as a securitization strategy in the broadest sense of the word, human rights, although rhetorically recognized in the law, in practice the forms of federal intervention (armed, administrative or politics) open a huge field of spaces for impunity and violation of them. What we find least in the Law is accountability, sanctions for probable abuse of power, limits or counterweights to the armed and police corporations, and instead we observe the legal design of a platform of federal administrative, armed and police interventions that, through recourse to the Declaration of Protection of Internal Security (a state of emergency), and even without it, any threat or risk constructed as a security issue will activate a powerful bureaucratic and armed apparatus that puts human rights, justice at stake and democracy. The production and use of intelligence by the armed and federal forces, independent of the federal agencies obliged to respond to any request, becomes a very dangerous resource in the hands of those who do not have serious obligations of accountability and confidential use. information because, in fact, all information will be reserved as national security.
What responses can be generated from society and communities to the expansion of military control?
Now there is little left. As never before, organized civil society, the international community and the political opposition mobilized against the Internal Security Law. Like in soccer, we played like never before, but we lost like (almost) always. Legal actions remain to be resolved - and this is crucial. Mainly the actions of unconstitutionality and the constitutional controversies to be resolved by the Supreme Court of Justice leave just enough space to maintain hope. In this sense, citizens must publicly turn their heads to make them feel that these processes have public attention, since the Supreme Court tends to deliberate with greater caution and resolve more seriously when it has a strong public exposure. Citizens can also make use of the amparo, a nineteenth-century jurisdictional vehicle, expensive and clumsy, but ultimately the only constitutional judgment that citizens have to at least try to contain abuses and violations of fundamental rights. The massive use of the amparo will give the opportunity for a plurality of judges to rule on this law, and that will maximize the possibility that the Federal Judicial Power, at its different levels, will be activated in defense of the Constitution.
Above all, it is up to citizens to exercise the vote as a mechanism of control, reward and punishment for the authorities. That is our main constitutional role. In this case, since it has clearly been a Law approved by the government and its party and some easily identifiable allies, it is up to us to exercise the vote in a way that sends a clear signal: that putting aside the Constitution has political-electoral costs. That is why I intend to avoid voting for those parties –as a group– and legislators –as individuals who may be candidates– that imposed the approval of this Law. Furthermore, we must demand that other candidates, as a campaign commitment, speak out clearly for repealing the Internal Security Law in case of occupying a position as a result of the election.
WIt's a question that has a high degree of complexity and I don't think I have an appropriate answer. I will develop it in three moments. 1. The expansion of military control is embedded in “the hermeneutical matrix of social suffering” (Nancy Pineda-Madrid), which is nothing other than the cumulative structural chain - political, economic, social and criminal - that damages and destroys lives human. This matrix of suffering and unworthy life has defined and made possible the parameters for the dispossession of citizenships and the fragmentation of communities in the national territory. 2. In this context of hopelessness, we find “the common person” (Leonardo Boff) who spends most of his time trying to survive the harsh economic crises and with a scarce and poorly paid job and who dreams of a better Mexico . This is where the largest number of victims (and their families) who have been treated inhumanly come from. Many of them have shown us their sense of orientation towards life in the face of social and natural disasters; however, it is these communities who have been stigmatized and consequently closed to their suffering. 3. Starting a path towards truth and justice in order to stop the military expansion requires supporting those who have been called “the alternative subjects of justice” (Saskia Sassen). There are thousands of women and men: victims, families of victims, civil society organizations and academia, who demand, among other things, an economic project that enables life, the application of the law and the control of the territory by the State. , cut off the financial supplies of organized crime, demand accountability from a corrupt political class, require defined deadlines for the formation of a professional police force and the withdrawal of the army to its barracks.
In my field of reflection, the first thing we need to do is critically question the false dilemma that has been built around security and that has been used politically to justify the war against drug trafficking and initiatives such as the Internal Security Law. In other words, in the face of aberrant violence and the power of organized crime, we need greater public security. Consequently, sectors of society are fighting for the armed and police forces to carry out more surveillance, intelligence work, etc., which results in serious abuses of human rights and civil liberties. The most obvious example of the false security dilemma is the relationship that has historically been built between drugs and insecurity, criminalizing the poorest sectors. The policing and militarization schemes are based on prejudices that dangerous classes are those that inhabit marginal geographic areas that must be controlled and repressed, leaving intact forms of transnational crime and connections of corruption with money laundering, far from the eye. of the poor. These are some of the mistakes that have been reproduced in academic and political discourse, leading us to place security as a necessary imperative, when the most important thing is to begin to de-securitize our social problems of violence. The second issue I see is learning from the experience of other countries related to accountability and justice. Guatemala and Peru, but perhaps also Colombia, represent paradigmatic cases in which trials against senior officials, the establishment of investigation commissions, etc., have opened very important public debates on trials against corruption and the commission of crimes. These experiences need to be translated into civil organizations, collectives, movements and even officials who do honest work.
What proposals could you make to think about these facts?
LPublic security will improve when we have professional and rooted police officers in their localities; Professional and prestigious prosecutors' offices that can carry out basic investigative tasks and focus on the crimes that most harm society - that is, when they pursue homicides, kidnappings, extortion, etc. and they privilege stopping arms trafficking over herb trafficking–; and when public spaces and public services invite citizens to live together and trust their neighbors and the authorities. This requires investing resources, time and political capital. But the authorities have incentives to promise quick solutions with drastic measures, such as more militarization. These measures are very visible but not really effective.
It is essential to repeal the Internal Security Law. As long as that law remains in force, the threat of a sudden suppression of the constitutional regime is latent and the diversion of resources from where they really would serve - police, prosecutors and public services - to where they do the most damage - with greater military deployment and more weapons in the national territory.
In the immediate term, the resources that we have today should be focused on: pursuing arms trafficking and not the transfer of narcotics. If the checkpoints that are looking for drugs on the roads that go from south to north today were looking for the weapons that flow from north to south, another rooster would sing to us. In the short term, a serious diagnosis should be made in which accounts are made of what has been done in the last twelve years, the results that have occurred and the needs of each locality where federal forces operate today, in order to build professional local police. and reliable. Special emphasis should be placed on identifying the cities and towns where civilian public security institutions have worked, in order to try to reproduce these examples elsewhere. In the long term, it is necessary to redesign and renew the public security and justice systems, giving priority to institutional strengthening at the local level, prevention and investigation. Throughout the entire process, it is essential to schedule, responsibly, the withdrawal of the military forces so that they stop carrying out public security and patrol tasks among the civilian population, for which they are not trained. There are many concrete proposals for reforms and specific public policies that we have made academics and civil society organizations. In particular, I have outlined the architecture of the legislative change that we require. But in order to undertake these efforts, it will first be necessary to contain the damage already done and that begins with the total repeal of the Internal Security Law.
PFirst, to recognize that life is the first right; if it is lost, the others have no meaning; From this premise, existence needs to be sustained by material conditions that make it possible to eradicate hunger for food and hunger for justice. Second, to recognize that there is a plurality of victims who need the shelter of society. The plurality not made visible hides the injustices of those who have suffered violence and are considered the “others”, the strangers, the different: women and men, girls and boys, transsexuals, migrants, and the landless, the stateless, the orphaned children and the careless; therefore, those of the naked and precarious life. The ignorance of their losses hides the impunity of the perpetrators. Recognize that our communities have been damaged by this war, dividing society into "good guys and bad guys", those who "deserve what happens to them" or who are part of the "collateral damage." The lives we have lost - physically and socially - have broken the social contract. Undoing the damage requires at least two redress: understanding that the trauma of the horror of violence is not only individual but collective. The atrocities that have been done to the victims carry a message for the “subjugated bystanders” (Fionnuala Ni Aoilin). Likewise, the violence has damaged the geography and culture of our territory. Third, reveal the contradiction that this war has imposed on us. A permanent war against drugs, for the sake of internal security, while our country is in the first places of illicit capital flow (Global Financial Integrity). Fourth, we need accountability and the application of justice for governors who have been singled out for acts of corruption in more than half of the country's states. The dispossession of social wealth for the sake of despotic power has also generated greater violence for us. Fifth, the training of police officers from the communities, who are safeguarded (Lisa Marie Cacho) "from the violence of the State and its abandonment." I think that all this will make possible the maintenance of life, the exercise of full citizenship and the restoration of the dignity of the military career, in their schools and in their barracks.
CWe are going against the current of a dominant trend of using national and internal security as a form of political control and not necessarily to build safer societies. Certainly the use of security has been around for a long time, but the level of surveillance is becoming increasingly microphysical and with abominable results. Deconstructing the hegemonic discourse on security, publicly airing the consequences of the security schemes implemented by the State and highlighting the implications they have on people's daily lives are some ideas that can help us separate or keep the administration at a relative critical distance. of public problems of recourse to security as a means of resolution. When a security vision of politics leaks, as it has in fact, there are always temptations to transform public problems in terms of security. In analytical terms, we do not need to be sorcerer's apprentices to understand social violence as a dimension of the nature of power. The first thing we need to seriously analyze are the configurations of power that are being generated outside of our traditional vision, their legitimacy and their connections between the world of legal and illegal. When we clarify some coordinates of the exercise of power and its links with the criminal underworld, we can come to understand certain forms of use of State violence and the role of organized crime in the configuration of certain criminal regimes, such as those that subsist in states like Guerrero, Veracruz, Tamaulipas, Michoacán or Colima. It should be noted that all of this has ethical, political and social consequences that we need to continue reflecting on.
Bilbiography
Huysmans, Jef (2014). Security Unbound. Enacting democratic limits. Londres y Nueva York: Routledge.
Institutions
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