DIVISION OF POWERS IN THE 1917 MEXICAN CONSTITUTION
Ma. del Pilar HERNÁNDEZ^*

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SUMMARY
I. Introductory Comments. II. Division of Powers within the Framework of Liberal Rule of Law. III. The Marks of History in the 1916-1917 Constitution. IV. Continuance of a Principle, the Legal Effect of an Eighty-Year-Old Constitution and the Atrophy of the Presidency. V. Conclusions.

I. INTRODUCTORY COMMENTS

The principle of division of powers has become one of the recurrent themes and most important in national and foreign media and historiography, owing to the momentous significance the proper effectiveness of authority conferred to the so-called legislative powers derives from the healthy operation of the constitutional political systems consolidated in the 18th and 19th centuries.

Delving deeper into a subject like this, which we will approach with the depth of a historian, turns into an arduous task to emulate, as in the case of a budding specialist in public law, like the author of this paper. It is enough to bear in mind those who devote themselves to embroider the thread of our past and who enable us to understand our present.

It is important to give a systematic explanation at this point. We consider it pertinent to give an overview of the principle of division of powers, from three different approaches: the historical-theoretical creation of the principle, its practice abroad, as well as in Mexican history, and finally reaching certain considerations on our times.

II. DIVISION OF POWERS WITHIN THE FRAMEWORK OF LIBERAL RULE OF LAW

Historians and constitutional scholars are not unaware of the fact that after the decline of the Roman and Greek civilizations and in the Middle Ages, the absolute monarch continued concentrating sovereign power in his person and thus exercising a kind of authority which until then had not been thought possible to split. The monarch was monarch by the “grace of God” and therefore his authority was not questioned.

The principle of division of powers comes with the consolidation of modern constitutionalism and the establishment of so-called Liberal Rule of Law¹ in the 18th century. It is established as one of its political dogmas, as a consequence of past experiences and a gradual evolution that goes from the transition of the authoritarian State to the liberal democratic State in England,² passing through the U.S. Constitution, to its classical and pristine form found in Article 16 of the French Declaration of the Rights of Man and of the Citizen,³ reflecting in toto, the purest expression of the liberal rationalism against the “monolithic absolutism of the monarchy.”

Based on the concept of the Rule of Law and with the development of positive law and legal theory doctrines, the principle, subject of this essay, has come to be understood as having two meanings. First, it is one of the characteristic elements of Rule of Law⁴ itself and of its Constitution as a political covenant in which political forces of that regime converge. Secondly, it is one of the guarantees in favor of the list of rights characteristic of liberal constitutionalism. According to Manuel García Pelayo, this is only possible through the organization of the Constitution based on a rational plan,⁵ from the technical point of view, as well as from an axiological one.

It is considered technical given that the bodies and acts that they carry out tend towards achieving unity of action. It is considered axiological because the bodies and acts tend towards the fulfillment of a value, namely: upholding a Rule of Law that guarantees individuals’ fundamental freedoms.

Rightly understood, a telos underlies the principle of division of powers, in both a historical and ideological sense: to avoid the concentration of power in the sole hands of the Executive.

Such affirmation can be verified, in perspective, through the creation of English constitutionalism system of checks and balances and the classical proposal made by Charles de Secondant, Baron of Brède and of Montesquieu. Secondant’s school of thought, was based to a large extent on the theoretical premises of Harrington, Locke and Bolingbroke.⁶ According to García Pelayo,⁷ it can be summarized in two fundamental premises:

a) “Each capital branch of the State (legislative, executive and judiciary) should have a different holder (powers).”

b) “In the framework of this separation, powers are reciprocally linked by means of a series of correctives and vetoes (statuer and empêcher).” The faculty of statuer (right to scrutiny) denotes the right to order or to correct what has been ordered by another (a constitutional body in which one of the State branches is entrusted). Meanwhile, the faculty of empècher (right to veto) implies the right to revoke the resolution taken by another (body).

The above premises could be expressed, in reconductio ad unum, in Baron of Brède and Montesquieu’s famous statement: that power should be a check to power. According to Montesquieu, there would be an end of everything “were the same man, or the same body, whether of the nobles or of the people to exercise those three powers: that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.”

Montesquieu’s contribution to the consolidation of contemporary constitutionalism is undeniable. This has come to be mirrored in the constitutions of our century.

But in this evolutional iter of constitutional thought, for the sake of a healthy balance among constitutional bodies entrusted with a State power, we cannot disregard public law specialist Karl Loewenstein’s clear contribution. For him, the concept of division of powers is erroneous, for its real meaning is no other:

than the recognition that, on one hand, the State has to fulfill specific functions —the technical problem of division of labor— and that, on the other, the recipients of power benefit if these functions are carried out by different bodies: liberty is the ideological telos of the theory of separation of powers. Separation of powers is but the classical form of expressing the need to distribute and control, respectively, the exercise of political power.⁸

Thus, from the creation of a principle, a product of the historical need of liberty, we go on to a division of functions, which is explained, and is only understood, based on the theory and practice of representation. In short, from a change in the holder of sovereignty which goes from the monarch to the nation, and from the nation to the people:

It is difficult to remove a deeply rooted mental plan. The dogma of separation of powers is the most sacred of constitutional theory and practice. Iconoclasts cannot be satisfied with the simple removal of the idol of three-fold separation of the order of the dominion in the legislative, executive and judiciary “branches” from its pedestal. In its place, they will be compelled to place another analysis of the dynamics of power adapted more to the pluralistic mass society of our century.⁹

As a result, Loewenstein proposes a new three-fold division of body authority that consolidates the power of the State:

a) Shaping fundamental political decision (policy determination);

b) Execution of the decision (policy execution), and

c) Political control (policy control).

For Loewenstein, each of the functions should be consolidated for the sake of collaboration among the constitutional bodies, and depend on the type of government, whether presidential or parliamentary.

III. THE MARKS OF HISTORY IN THE 1916-1917 CONSTITUTION

The historical evolution and the content that gave rise to the principle of division of powers, as a product of the authoritarian struggle against authoritarian regimes prevailing in European States, was reflected in the territories they held in the Americas, but they were not without obstacles and nuances.

Unlike European revolutions, the libertarian struggles in Mexico, particularly that of 1810, were carried to fight the despotism of the viceroy, more than against the Spanish monarch.

The triumph of the independence movement and the subsequent internal fights that were waged in Mexico during the first half of the 19th century were characterized by the following features: the elimination of tainted practices, “dismantling the network of power inherited from Colonial times and beginning to create a new form of State”;¹⁰ the efforts and the need to consolidate a new Mexican State. All this led to testing various forms of government: “constitutional monarchy, central and federal republics. The failure of the first two determined the victory of the federal alternative, but this did not mean that the republic worked unequivocally.”¹¹

The iter evolutive in adopting one of the above-mentioned forms of government and in establishing the principle of division of powers in Mexican history is found for the first time in the text of the 1814 Constitution of Apatizingan. The Constitution reveals a variety of doctrinal and constitutional influences of that time,¹² as well as of a division of powers with the marked pre-eminence of the Legislative Branch.¹³

In Article 9 of the 1824 Constitution, Constitutional Act of, followed the American constitutional model almost faithfully, in terms of the vision of powers as well as the presidential system itself, besides the bicameral character of the Congress, the vice-presidency and the hierarchical, operative and jurisdictional organization of the Judicial Power of the Federation. While this Constitution was in force, the federal Executive assumes de facto a series of powers that place him above the other two bodies.

Article 4 of the December 15, 1835, constitutional bases set forth that: “The exercise of the Supreme Power of the Nation will remain divided into Legislative, Executive and Judiciary,” stipulating the existence of prohibitions so that none of the three powers could overstep the boundaries of its jurisdiction.¹⁴

The 1836 constitutional laws, particularly the second law, adopted the above principle, but formed a new type of constitutional body invested with all the necessary faculties to consider it a superpower.

The constitutional history, in genere, of Mexico during the second half of the 19th century, can be characterized as follows:¹⁵

— By a need to begin to run the model under a lay regime

— Promotion given to the country’s economic development

— Complex integration of the social groups that comprised the country’s social framework

— A de facto preeminence of the Executive over the two other bodies, and the use, or rather the abuse, of the exercise of extraordinary faculties

— A formal preeminence and control of the Legislative power on/over the Executive, by means of the elections

— An almost null and void presence of the Judiciary, and

— The promulgation of a new Constitution, the federal one of 1857.

Article 59 of the 1857 Constitution established a presidential system of a sui generis government, which Orozco Henríquez considers an intermediate point between American presidential system and European parliamentary system. The power of the State was entrusted to the three traditional constitutional bodies, a federal Executive without power of veto, a unicameral Legislative Power (recall the suppression of the senate) and taken on with a series of prerogatives to control public administration (ministerial sanctions and appearances of branch ministers before the General Congress and the limitation of the federal Executive in the use of extraordinary powers):¹⁶ “In the margin of what the Constitution indicated, regarding the division between the Executive and the Legislative branches, the first dominated the scene, except in scarce exceptions. The Judicial Power could not be consolidated either.”¹⁷

The 1874 constitutional reforms to the 1857 Constitution not only determined the reestablishment of the senate and granting a staying veto in favor of the Executive branch, but it also makes the consolidation of a presidential system with the national imprint possible.

Suffice to say, in this brief historical reference, that during the authoritarian regime of General Porfirio Díaz, presidentialism was strengthened and that the division of powers was seriously lessened.

The decree of reforms to the 1857 Constitution became and was limited, in the strictest sense, to the proclamation of a new federal Constitution, that of 1917. The initial 1916 and 1917 Constitutional debates did not center on the strict discussion of the principle, as one of the dogmas that would characterize, up until that moment, the first and only Constitution of the 20th century. Nevertheless, the type and number of powers to be exercised by each constituted body was heatedly debated. The two branches that had become the center of attention —the Legislative and Executive branches— were always held in the spotlight of the discussion.

The historian will not be surprised with the alternative that came into being in a completely natural way: the decision to adopt a form of government with which the Mexican people would live during the eighty years of the 1917 Constitution’s being in force. It also led to the deep transformations of the constitutional political system of Mexico: the Constitution wanted the entire form of federal government to take the form of presidential government in all its extent (so that Articles 27 and 123) could rapidly become effective to in turn cause the least possible damage.¹⁸

IV. CONTINUANCE OF A PRINCIPLE, THE FORCE OF AN EIGHTY-YEAR-OLD CONSTITUTION AND THE ATROPHY OF THE PRESIDENCY

The 1917 Constitution not only established the division of powers (Article 49) and the form of presidential government, but it also set up the constitutional mechanisms of strengthening the federal Executive branch and its supremacy, as well as certain forms of authority for the Legislative Branch and the Judiciary. As to the federal Executive, the following characteristics pervade:

— The president of the Republic will be designated by the outcome of a direct election.

— The legal grounds for charges against the president are restricted only to serious common law offences and treason to the nation.

— The grounds of express violation of the Constitution and attacks against electoral freedom are partially repealed.

With respect to the Legislative Branch, though the powers set forth in the 1857 Constitution are maintained, some forms are established, such as:

— The number of terms in session is reduced to one.

— The Senate’s authority to be aware of the second instance is established, and as the jury, it rules in trials against "public officials".

— Restrictions are placed on the Permanent Committee’s power to convoke extraordinary sessions.

In regard to the Judiciary Branch, the senate is allowed to intervene in the ratification of appointments of the ministers of the Supreme Court of Justice of the Nation. The system of popular election is suppressed for second-level officials. New requirements of eligibility are established for the appointment of ministers.

Article 49 was subject to its first constitutional reform under the presidency of General Lázaro Cárdenas del Río, by decree of August 12, 1938. The reform answered to the General’s intention to prevent Congress from granting the federal Executive extraordinary powers to legislate, when the premises of Article 29 of the Constitution were not present, that is, in the case of a suspension of individual rights. With this reform, contra legem practices were eradicated: abuse in the president’s exercise of the extraordinary powers with comprehensive tolerance from the Legislative and Judicial branches, and the limitation and correction in the sound balance between the three constitutional bodies.

By decree of March 28, 1951, a second paragraph is added to Article 49, to express yet another premise in the exercise of the extraordinary powers in dealing with the case set forth in the second paragraph of Article 131 of the Constitution, that is, because it dealt with the powers granted to the federal Executive for establishing duties on imports and exports.

Though the article that explicitly establishes the division of powers, or if you prefer the division and collaboration of roles, has only been reformed on two occasions, the strength endowed to the Executive branch and its preeminence over the other two branches has come into being with the subsequent reforms that have allowed it to increase its formal powers, as well as with a series of de facto situations that have bestowed on it a considerable amount of extra-constitutional powers. Next, we will briefly see its formal evolution.

By the decree of reforms to Constitutional Article 83, of January 12, 1927, and during the Álvaro Obregón administration, reelection is established for one more term. It is worth remembering that at that time the presidential term of office lasted four years.

On January 24, 1928, at the behest of one of Obregón’s bloc leader, Higinio Álvarez, a second reform to Article 83 is passed. Thus the presidential term of office is extended from four to six years. This reform also established the corresponding principle of reelection, that is, reelection was allowed, but not for the following term, without limits of any kind. This power was repealed in 1933.

According to González Oropeza,¹⁹ it was Deputy Fernando Moctezuma’s turn to argue in favor of the reform and to put its merits on the table. Thus, the professor appraises the following ones:

— A single presidential term would eradicate the riots that until then oftentimes took place at the reinstatement of the Executive Branch.

— As soon as the elected leader of the nation takes office, he needs more time to carry out his program and to shape his ideals.

— A longer period of time would allow the president not only to deal with the political aspects of his government, but he would also meet with ease the social needs of the community.

In 1928, other constitutional reforms appear that result in strengthening the Executive branch, namely:

— Subsection VI of Article 73 is reformed in order to eliminate the municipal system and establish the administrative Department of the Federal District, the controller of which was appointed and dismissed specifically by the federal Executive.

— Article 96 is reformed to eliminate congressional power to appoint Court ministers and to establish said power as part of those pertaining to the Executive Branch.

— Article 111 was added to grant the president of the Republic the power to request the Chamber of Deputies to dismiss Supreme Court of Justice ministers and other federal judges from office for “misbehavior”, as well as Federal District Superior Court of Justice magistrates and state court judges. This power was repealed in 1982.

In 1951, the Constitution again undergoes reforms that undoubtedly tend to strengthen the Executive:

— Article 73, Subsection VI, clauses 1 to 4, are reformed to grant it authority in matters of public health.

— Article 89 is reformed with which the regulatory authority is awarded.

— Reforms were made to Articles, 27, 28 and 131, which confer new powers in economic matters.

In 1983, Articles 25, 26 and 28 are reformed coming to shape what is now known as the “Economic Chapter of the Constitution”, as it can be drawn together as such. This set of constitutional precepts confirms a series of powers in economic matters given to the federal Executive.

Suffice to say that the reforms carried out during these 80 years of constitutional life have been made to the norms that organize the life and running of the Legislative branch. They have ranged from the simple powers of appointment to the modification of the numbers that form both Chambers and the essence of the electoral principles that have given it new life. With regard to the Chamber of Deputies, this went from the 100 deputies, who originally formed it, to 500, and from an absolute majority system into a mixed one, which makes room for the voice of the minorities within the predominance of the majorities. As to the Senate, the appearance of two new principles came into being, in addition to that of the majority, namely: the one on proportional representation and that of the first minority (a national senator elected in just one electoral district), its initial number of members went from 64 to 128 senators, because of the three previously mentioned principles.

With respect to the Judicial Power, it is worth pointing out that the most important reforms are the ones that have taken place in the last ten years or so. In this period, a apparent tendency toward constitutional control (constitutional justice) can clearly be seen, as well as a greater awareness in the type of powers to be exercised, especially by the Supreme Court of Justice, save the reminiscences of the 1970’s, during which it was under its explicit jurisdiction.

Along this line of thought, we can say that the 1917 Constitution instigates an exacerbated presidential system from 1929 on, with the consolidation of the Party of the Mexican Revolution, with the Executive’s increased powers not only at a formal-constitutional level but also, as Jorge Carpizo has pointed out, at the level of target or, to put it more precisely, extra-constitutional faculties in the sphere of leadership of the now called Institutional Revolutionary Party. This situation was strengthened by a series of factors, such as: the hegemony of a single party without any kind of opposition, the emergence of a type of reciprocity and dependency among both elected and bureaucratic public officials, among others.

It is worth pointing out that the current panorama of the political constitutional system has a new face. The opening of a multiple party system, or to express it better a healthy party struggle for the exercise of public power, has been translated into an also new electoral geography, the atomization of bureaucratic reciprocity, the opening of the mass media and the appearance of members of civil society on the stage for the spreading of democracy. All of these factors mark a milestone in the history of the Mexican Constitution, a milestone that translates into the need of in substancia changes to the juridical and consequently the legal constitutional system.

Possibly, just possibly, we have finally approached the correction of the deteriorated relationships among constitutional State bodies. Possibly, and just possibly, the winds of democracy can place an extremely rare environment on a solid ground.

Possibly, just possibly, the Mexican State may arrive to the third millennium with clear decision and a vocation for constitutional matters, and by the year 2000 we may have a new Constitution that is fully systematized and tuned in with the sociological reality that it upholds and a real distribution of jurisdiction not only in administrative bodies, but also very importantly, in that which concerns the spheres of the government.

V. CONCLUSIONS

It is worth including a brief reflection to serve as a conclusion: as of 1988, the validity of the principle of division of powers more than ever acquires a new parameter of procedural legitimacy for the sake of the proper effectiveness of the constitutional bodies entrusted with the power of the State.

Suffice to say that since the establishment of the so-called discussions for State reforms in 1996 and its corollary in the August 22, 1996, Constitutional Reforms, they mark a milestone in Mexican constitutional history, the real division of powers.

The scenarios are yet to be defined, but it is a clear situation. The change in the relationships among the bodies for greater balance is a reality that must be considered to its full extent and with the seriousness, on behalf of political figures, with the seriousness of real constitutional change.

Notes
* Researcher at the Legal Research Institute.
1 On the historical origin, see: Hernández, María del Pilar, Mecanismos de tutela de los intereses difusos y colectivos, Mexico, Legal Research Institute, 1997, pp. 18-21.
2 Historically, the division of power is the result of the struggle against the absolutism of kings in the name of the people’s rights. Its evolution is characterized by the adjustment of the ancient authoritarian institutions to new aims, as well as by the creation of new institutions that concur with the transformations.
3 It should be recalled that the precept described stated: “Toute société dans laquelle la garantie des droits n'est pas assurée et la separation des pouvoirs determinée n'a point de constitution” [A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all]. Though until that time the number of bodies in which ‘power’ was to be divided had not yet been established. It is Lally-Tollendal, in the August 31, 1789, meeting and in the bosom of the National Assembly, who asserts that there should be three powers, arguing: “Un pouvoir unique finirá necessairement par dévorer tout. Deux se conbattraient jusqu'à l'un aurait ecrasé l'autre. Mais trois se maintendraient dans un parfait équilibre de manière que si deux lutteront ensemble, le troisième, ègalement interessé au maintien de l'un et l'autre, se joigne à celui qui est opprimé contre qui opprime, et amène la paix entre tous” [A single power will necessarily end up devouring everything. Two will fight one another until one destroys the other. But three will be kept in a perfect balance in such a way that if two fought together, the third one, equally interested in supporting one as much as the other, would join the oppressed party against its oppressor, bringing peace among all]. Cfr. Laferrière, Jules, Manuel de droit constitutionnel, Paris, 1947, p. 630, cit. in Loewenstein, Karl, Teoría de la Constitución, trans. Alfredo Gallego Anabitarte, 2nd. ed., Barcelona, Ariel, 1983, p. 54.
4 According to Elías Díaz, the essential and indispensable characteristics of the Rule of Law can be summed up and reduced to four, namely: “a) The supremacy of law; the law as an expression of the general will; b) The division of powers: the legislative, executive and judiciary branches; c) Legality of Administration: performance according to law and sufficient legal control; d) Fundamental rights and freedoms, a formal juridical guarantee and an effective material achievement"; see Estado de derecho y sociedad democrática, 8th ed., Madrid, Taurus, 1986, p. 31. For Ernest Forsthoff, “The creation of the Rule of Law is characterized by a high degree of formalization and with that, it is asserted that its main structural elements, such as the division of powers, the concept of law, the principle of the administration’s validity, the guarantee of fundamental rights and the autonomy of the courts intrinsically contain the conditions of its effectiveness,” see Forsthoff, Ernest, “Concepto y esencia del Estado social de derecho”, El Estado social, trans. José Puente Egido, Madrid, Centro de Estudios Constitucionales, 1986, p. 83.
5 “A structure is logical when an arrangement of bodies and acts is established in such a way that it leads to a previously set objective, with all the elements of the series being given direction and a functional role according to a foreseen end.” Cfr. García Pelayo, Manuel, Derecho constitucional comparado, Madrid, Alianza Universidad, 1993, p. 154.
6 On the ideas of the above-mentioned authors, see Cueva, Mario de la, Teoría de la Constitución, Mexico, Porrúa, 1982, pp. 185-194.
7 García Pelayo, op. cit., note 5, p. 154.
8 Loewenstein, Karl, op. cit., note 3, p. 55.
9 Ibidem, p. 62.
10 González, María del Refugio, “De la acumulación de funciones a la división de poderes (Nueva España-México)”, Crónica Legislativa, Mexico, H. Cámara de Diputados-LVI Legislatura, No. 1, October 1994-March 1995, pp. 19 and 20.
11 Ibidem, p. 12.
12 According to Professor J. Jesús Orozco Henríquez those influences are: Rousseau’s school of thought, from the 1787 United States Constitution, from the 1793 and 1795 French Constitutions, as well as from the 1812 Constitution of Cádiz. Orozco Henríquez, J. Jesús, “Comentario al artículo 49 constitucional”, Constitución Política de los Estados Unidos Mexicanoscomentada, 9th ed., Mexico, UNAM, IIJ, 1997, Vol. II, p. 563.
13 Ibidem, p. 561.
14 Ibidem, pp. 565 and 566.
15 González, María del Refugio, op. cit., note 10, pp. 19 and 20.
16 Orozco Henríquez, J. Jesús, op. cit., note 12, p. 566.
17 González, Ma. del Refugio, op. cit., note 10, p. 20.
18 Molina Enríquez, Andrés, “El artículo 27 de la Constitución Federal”, Boletín de la Secretaría de Gobernación [Interior Ministry Bulletin], Mexico, INEHRM, 1985, Vol. I, pp. 672-680. González, María del Refugio, op. cit., note 10, p. 20; Orozco Enríquez, J. Jesús, op. cit., note 12, p. 567.
19 González Oropeza, Manuel, “Comentario al artículo 83 constitucional”, Constitución Política de los Estados Unidos Mexicanos comentada, 9th ed., Mexico, UNAM, Legal Research Institute, 1997, Vol. II, pp. 870 and 871.