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Legal Systems in Mexico: Overview
Practical Law Country Q&A w-017-6016 (Approx. 14 pages)
Legal Systems in Mexico: Overview
by Manuel Martínez Pérez, Von Wobeser y Sierra, S.C.
A Q&A guide to the legal system in Mexico.
The Q&A gives a high-level overview of the key legal concepts including the constitution, system of governance and the general legislative process; the main sources of law; the court structure and hierarchy; the judiciary and its appointment; the general rules of civil and criminal litigation, including reporting restrictions, evidentiary requirements, the roles of the judge and counsel, burdens of proof and penalties.
Constitution
The Constitution of the United Mexican States (Constitution) is:
- In written form.
- Federal.
- Rigid (a complex legislative procedure must be followed to amend any of its provisions).
The Constitution was enacted on 5 February 1917 and is the supreme law in the Mexican legal system, along with the international treaties to which Mexico is a party.
The Constitution, which comprises 136 Articles and was most recently amended in 2017, sets out the structure and organisation of the Mexican state, the powers of and limitations on its institutions and the fundamental rights of all Mexicans, along with the mechanisms to enforce these rights.
It is divided in two main sections:
- The organisational section (Titles 2 to 5) establishes the framework and the institutions of the state and the division of powers at the federal and local levels, defining the scope of competence of each of those powers.
- The principles section (Title 1) sets out the individual rights guaranteed by the Constitution.
System
Article 40 of the Constitution establishes that Mexico is a representative, democratic and federal republic composed of 31 states and Mexico City. Each state has sovereignty in matters concerning its internal affairs but is part of the federation established according to the principles of the Constitution.
Head of State
Mexico has a presidential system, with the President as the head of state.
An election for a new president occurs every six years. Mexicans over 18 years old who are registered with the National Electoral Institute have the right to vote in a democratic procedure. The candidate who receives the most votes (simple majority) will be designated as the new constitutional president of Mexico.
Structure
The President is both head of state and head of the government, in charge of the federal public administration.
The federal public administration operates both through a centralised and a government-controlled scheme (Article 1, Organisational Law of The Federal Public Administration (Ley Orgánica de la Administración Pública Federal)).
The centralised administration is composed of the:
- Office of the Presidency of Mexico.
- Ministries of State.
- Office of the Legal Counsel to the President.
- Co-ordinated regulatory entities.
The government-controlled administration is composed of the:
- Decentralised bodies.
- State participation companies.
- National credit institutions.
- National credit auxiliary organisations.
- National insurance and surety institutions and trusts.
The separation of powers is established by Article 49 of the Constitution, which divides the Supreme Power of the Federation (Supremo Poder de la Federación) into the legislative, executive and judicial branches, as follows:
- Legislative power is vested in the Congress of the Union (Congreso de la Unión) (Congress).
- Executive power resides in the executive branch, the Federal Public Administration headed by the President of the United Mexican States.
- Judicial power is held by the Supreme Court of Justice (Suprema Corte de Justicia de la Nacion) (Supreme Court).
The separation of powers is not absolute. There are checks and balances so that each of the powers of the Federation and every level of government has limited attributions, depending on the others to function correctly.
Some aspects of power may be shared among the three branches, for example, the legislature has the power to impeach:
- Senators and congressmen of the Congress.
- Justices of the Supreme Court.
- Councillors of the Federal Judicial Council.
- State secretaries.
- The Attorney General of the Republic.
- Circuit magistrates and district judges.
- The Chairman Councillor.
- Electoral councillors and the Secretary of the Federal Electoral Institute.
- Magistrates of the Electoral Tribunal.
- Members of the independent constitutional bodies.
- General managers and their equivalents in decentralised agencies
- Government-controlled corporations, other similar associations, and public trusts.
In addition, the legislative or executive powers can request the judiciary to review the constitutionality of certain laws.
The system is designed so that no branch of the state has more power than the others. However, if the same party has both the majority of the Congress representation and the elected President, they will have almost absolute power.
Proposal and Drafting
The right to initiate laws or decrees is vested in the President, the deputies and senators of the Federal Congress, the state legislatures and Mexican citizens (where they make up at least 13% of registered voters) (Article 71, Constitution).
Congress constitutes the country's federal legislative branch, comprising the Chamber of Deputies (Cámara De Diputados) and the Chamber of Senators (Cámara De Senadores (Senate)). Among its other powers, the Congress has exclusive power to legislate on certain subjects including citizenship, naturalisation, immigration and national security. In practice, the Congress initiates most legislation.
Laws and regulations are created by:
- Decisions made in Congress.
- Decrees of the President.
Binding court precedents are created as follows:
- When Mexico's Supreme Court rules the same way on five consecutive cases.
- When the Federal Circuit Courts unanimously rule the same way on five consecutive cases, in which case all lower federal courts must follow their decisions.
Scrutiny
Bills whose passage or decree is not the exclusive right of one of the chambers must be discussed successively by both, in accordance with Rules of Procedure governing the form, stages and the procedure for debates and the casting of votes.
The process for the enactment of laws and decrees can be started in either of the two chambers, except for bills dealing with loans, taxes or the recruitment of troops, which must all be discussed first in the Chamber of Deputies.
Either of the chambers can approve bills. The approval can be total or partial.
Once a bill is approved, it is sent to the executive branch to be accepted, commented on or declined (veto right). This veto right is not absolute and certain rules must be followed by the President in exercising it. If the executive power has comments on the bill, the bill will return to the chamber where it originated to be amended accordingly. Once amended by that chamber, it goes back to the President for approval.
There are several ways in which the judiciary can review both legislative and executive actions. The most important are the following:
- Amparo Action (Juicio de Amparo) (Articles 94, 103 and 107, Constitution). This is a constitutional appeal and can be filed by individuals or groups against (among others):
- unconstitutional laws; and
- final administrative decisions, awards and resolutions affecting private parties.
- Constitutional Controversy (Articles 46, 94, 105 and 106, Constitution). An action can be brought before the Supreme Court to resolve conflicts arising between:
- federal powers, powers of the states and Mexico's city government entities;
- federal, state, municipal or Mexico City governments; and
- federal and state courts on questions of jurisdiction.
The action can be used to challenge any type of violation of the Constitution. - Unconstitutionality Action (Articles 94 and 105, Constitution). This is an action filed before the Supreme Court to determine whether a federal, federal district (Mexico City), state or municipal law (but not a specific ruling of a government authority or court decision) conflicts with the federal Constitution. This action can only be filed by the:
- federal and state chambers of representatives;
- Senate;
- President through the government legal counsel;
- registered political parties;
- Human Rights National Commission;
- Federal General Attorney; or
- organisations listed in Article 6 of the Constitution.
In cases of emergency (such as an invasion) where there is a serious danger to the public, the President, with approval of the Congress, can suspend constitutional rights as necessary for the purposes of public safety, for a limited time (Article 29, Constitution).
Congress must grant such authorisations as it deems necessary to enable the President to deal with the emergency.
However, any decree enacted under emergency powers cannot restrict or suspend the exercise of any of the following rights and principles:
- Rights to non-discrimination, to legal personality, to life, of personal integrity, of family protection, to have a name or to have a nationality.
- Children's rights.
- Political rights.
- Freedom of thought and of religion.
- Principles of legality and retroactivity.
- Prohibition on the death penalty, on slavery and servitude, of disappearance and torture.
- The judicial guarantees that are necessary to protect these rights and principles.
Executive orders passed by the President during the restriction or suspension of constitutional rights must be immediately reviewed by the Supreme Court, which must rule on their constitutionality and validity as soon as possible (Article 29, Constitution).
Legal System
Under the Mexican Constitution, the Constitution, the laws enacted by the Congress of the Union and all treaties are the supreme law of the Union
The Supreme Court has interpreted this constitutional provision to establish the hierarchy of norms, as follows:
- Constitution.
- International treaties protecting human rights.
- Other international treaties.
- Federal laws and local constitutions.
- Local law and regulations.
For an international treaty to be binding, the President of Mexico must sign it in their capacity as head of state and the Senate must ratify it, as a representative of the will of the federal entities. Therefore, international treaties are binding on the Mexican state as a whole, binding all its authorities before the international community.
Under the territoriality principle (under which a state can prosecute crimes committed within its borders), Mexican laws are applicable to all people located in Mexico, and to all acts or facts that occurred within its territory or jurisdiction, unless those laws designate a foreign governing law and/or the treaties or conventions to which Mexico is a party provide otherwise.
The court structure and hierarchy are set out in Article 94 of the Constitution.
The judicial power of the United Mexican States is divided into federal and state systems. The highest court is the Supreme Court in Mexico City. It consists of 11 judges and one Chief Justice, all appointed by the President and confirmed by the Senate or the Permanent Committee (a committee of the Chamber of Deputies that attends matters when the chamber is not in sessions period).
The Supreme Court can meet in joint session or in separate chambers, depending on the type of case before it. This court is divided into four chambers, each with five justices. These are the:
- Penal Affairs Chamber.
- Administrative Affairs Chamber.
- Civil Affairs Chamber.
- Labour Affairs Chamber.
- Auxiliary Chamber, which is responsible for taking cases that cannot be heard in the four regular chambers.
Court rulings are decided on the basis of majority opinion. Rulings of separate chambers can be overturned by the full court.
There are three levels of federal courts under the Supreme Court:
- Collegiate Circuit Courts. The collegiate circuit courts, which have three magistrates each, deal with appeals and the protection of individual rights, and mainly hear amparo cases (see Question 5). They are located in Mexico City, Toluca, Guadalajara, Monterrey, Hermosillo, Puebla, Veracruz, Torreón, San Luis Potosí, Villahermosa, Morelia, and Mazatlán. There are a few specialised courts for example, for anti-trust matters and telecommunications cases.
- Unitary Circuit Courts. These courts, which each have six magistrates, also handle appeals cases and are located in Mexico City, Toluca, Guadalajara, Monterrey, Hermosillo, Puebla, Mérida, Torreón, and Mazatlán.
- District Courts. These courts deal with cases at first instance. Cases are heard by a single judge.
Federal judges of the lower courts are appointed by the Supreme Court.
Judicial precedents issued by the Supreme Court, whether in plenary sessions or in chambers, must be followed by the following courts (local or federal):
- Supreme Court.
- Collegiate circuit courts.
- Single-judge circuit courts.
- District courts.
- Military Tribunal.
- Judicial courts of common order of the states and of Mexico City (first instance courts in every state and in Mexico City, which decisions can be appealed before appellate collegiate courts in every state and in Mexico City).
- Administrative courts.
- Labour courts.
Additionally, the judicial precedents issued by the collegiate circuit courts, whether in full court or in chambers, must be followed by all lower courts in Mexico or courts whose acts may be subject to their respective jurisdictions.
The independence of the judiciary is guaranteed by Article 17 of the Constitution, which provides that:
- Court services are free and court fees are prohibited.
- Federal and local laws must guarantee the independence of the courts and the means of enforcing their rulings.
- Courts must issue their rulings in a prompt, complete and impartial manner.
The qualifications and requirements for appointing judges for the various courts are set out in the Constitution (Articles 95 to 101) and the Organisational Law of the Federal Judicial Branch.
Appointment
Judges are appointed as follows:
- Supreme Court. The President must submit a list of three candidates to the Senate, who interview them and then choose one by a two-thirds majority vote within 30 days of the interview. This period cannot be extended. If the Senate fails to appoint a candidate by the deadline, the President must appoint one person from the list. If the Senate rejects all three candidates on the list, the President must submit a new list and the process is repeated. If the Senate rejects this second list completely, the President must appoint one person from the new list. Judges of the Supreme Court are appointed for a 15-year term and can only be removed in the cases provided in Title Four of the Constitution. They are entitled to a retirement payment at the end of their term. Judges cannot serve a second term, unless they have held the office as provisional or interim judges.
- Collegiate Circuit Courts and District Courts. The designation of judges for collegiate circuit courts and district courts is done through a competitive internal examination and an open competitive examination set by the Federal Judicial Council. Collegiate circuit judges are appointed for six years, and can be re-appointed for another six-year period. These judges can be removed for the reasons set out in the Internal Organisational Law of the Federal Court System. They must retire once they reach the age of 75. District court judges are appointed for six years, and they can be re-appointed for another six-year period. These judges can be removed by being appointed to the collegiate circuit court, for the reasons set out in the law, or by forced retirement when they reach the age of 75.
Qualifications
Qualifications required for judicial appointment are as follows:
- Supreme Court. A judge must have served with efficiency, ability and integrity in the dispensation of justice, or have distinguished themselves by their honour, ability and career in the legal field, and:
- be a Mexican citizen by birth, with legal capacity to exercise political and civil rights;
- be at least 35 years old;
- have held a law degree for at least ten years, issued by an institution legally empowered for that purpose;
- have a good reputation and not have been convicted of a crime punishable by imprisonment for more than one year or by any other penalty in the case of convictions for robbery, fraud, forgery, breach of confidence or any other crime that would seriously damage good reputation;
- have lived in Mexico for two years before the appointment; and
- not have been a Secretary of State, Attorney General, senator, federal representative or constitutional governor the whole year before the appointment.
- Collegiate Circuit Courts. A judge must:
- be a Mexican citizen by birth, not having acquired any other nationality, with legal capacity to exercise political and civil rights;
- be at least 35 years old;
- have a law degree, held for at least five years, issued by an institution legally empowered for that purpose; and
- have a good reputation and not have been convicted of a crime punishable by imprisonment for more than one year.
- District Courts. A judge must:
- be a Mexican citizen by birth, not having acquired any other nationality, and have legal capacity to exercise political and civil rights;
- be at least 30 years old;
- have a law degree, held for at least five years, issued by an institution legally empowered for that purpose; and
- have a good reputation and not have been convicted of a crime punishable by imprisonment for more than one year.
As a general rule, both criminal and civil courts in Mexico follow the adversarial principle. The court in charge of the case does not take a position in the litigation; instead, it limits itself to impartially judging according to the claims and allegations of the parties.
Civil Courts
Civil courts apply the adversarial principle. However, proceedings follow a written, rigid process before a single judge at all stages.
Civil and commercial matters can be subject to non-adversarial mechanisms, namely alternative dispute resolution, through which the parties can reach an agreement that is beneficial to both of them. The most popular alternative dispute resolution mechanisms are mediation, arbitration, and dispute boards.
Criminal Courts
In 2008, a constitutional reform introduced a new oral and adversarial criminal justice system (Articles 16, 17, 18, 19, 20, 21 and 22, Article 73 (items XXI and XXIII), Article 115 (item VII) and Article 123 (section B, item XIII)).
The key features of the reform include the following:
- An oral public debate must now be held before a decision is issued. This replaces the use of a written file.
- Implementation of cutting-edge scientific technology and forensic evidence during the investigation stage.
- The victim's statement must be heard directly and personally by the public prosecutor or the judge before issuing the sentence.
- The accused is guaranteed a lawyer from the start of the proceedings.
- The accused is presumed innocent until proven guilty by the investigation, and the use of pre-trial detention requires a reasoned decision.
- Evidence obtained during the investigation has no probative value until it is presented before a competent authority.
- There must be different judges at the different stages of proceedings (that is, investigation and trial).
More generally, the criminal justice system is governed by the following principles:
- Publicity.
- Contradiction.
- Concentration.
- Continuity.
- Immediacy.
(Article 20, Constitution.)
Civil Law
The dispositive principle applies in civil cases. Under this principle, the parties (not the judge) are responsible for:
- Starting proceedings.
- Determining the matters at issue in the dispute.
The judge cannot put themselves in the claimant's position to exercise an action ex officio, or reply to the claim in place of the defendant. No one can be forced to apply for legal protection or exercise their defence in court, subject to certain exceptions. The judge cannot take the initiative to gather the evidence they deem necessary for clarification of the matter and resolution of the dispute. This burden rests on the parties, to the extent that it is to their own benefit.
This principle is based on Article 17 of the Constitution, which seeks to maintain an impartial application of the right of access to justice, leaving it to the litigants' discretion to assess the need to provide evidence and determine which, if any, they deem conducive to their interests. There is a presumption that the litigants are best placed to know whether and when to submit evidence and when to refrain from doing so and, where appropriate, which evidence is most suitable to prove their claims or defences.
Criminal Law
In criminal matters, the public prosecutor is responsible for gathering the evidence, helped by the police force.
The public prosecutor and the police must record all their actions during the investigation of the crimes, using any necessary means to ensure that the information is complete, exhaustive and accurate, and that any person legally entitled has access to such information.
Civil Law
The evidentiary procedure includes the following four stages:
- Submission of evidence.
- Admission or rejection of the evidence.
- Evaluation of the evidence.
- Analysis of the evidence.
Evidence is submitted by the parties during the trial. The judge is then responsible for admitting, evaluating and analysing the evidence. The judge has the power to request the production of evidence ex officio, subject to certain limits. No evidence is examined before trial.
Criminal Law
During the investigation stage and once the parties are summoned to the initial hearing, the defendant has the right to consult the investigation records made by the public prosecutor and obtain a copy, with the appropriate opportunity to prepare for the defence. If the public prosecutor refuses to allow access to the records or provide copies to the defendant, the defendant can request the managing judge to make an appropriate order. Both parties have the right to independently examine the evidence provided to the court for the trial.
Civil Law
In civil matters, proceedings are not oral and only those who have a lawful interest in the trial can participate and be informed of the proceeding. This means that neither the public nor the press can easily approach the judiciary and obtain information or copies of the trial documents.
Criminal Law
Since the criminal procedure is adversarial and oral, based on the principles of publicity, contradiction, concentration, continuity and immediacy, hearings are open to the public. However, the authorities must at all times respect and protect both the dignity of the accused and the victim. This means that the general public and journalists have access to trials, except in circumstances defined by law when it is crucial to protect the identity of the claimant, defendant or victim.
Civil Law
In civil matters, reporting of trial is not common, and although it is not prohibited, it is harder to gain access to the trial information to report on the case (see Question 21, Civil law).
Civil Law
The function of the trial (first instance) is to enable the parties to provide the evidence necessary to prove their claim so that the judge can rule on them. A first instance decision can be appealed in a second instance proceeding, which can then be subject to amparo proceedings.
The main parties to the trial are the claimant, the defendant and the judge.
Criminal Law
Under the National Code of Criminal Procedures, the criminal procedure comprises the:
- Investigation stage.
- Intermediate stage.
- Trial stage.
The trial is the stage in which the essential questions of the case are examined and decided on in accordance with the principles set out in Article 20 (see Question 18).
The main parties to the trial are the defendant and the public prosecutor.
Role of Judiciary
In criminal trials, the parties (defendant and public prosecutor) will make their case orally in the presence of the judge, who will listen to the debate and points of dispute setting out the details of the case. The judge will not have previously heard the case and is not influenced by pre-trial background.
The immediate and personal intervention of the judge allows the concentration and continuity of the trial, which must be carried out in front of all the parties from the beginning until its conclusion, in a succession of actions that unify the debate, avoiding, as far as possible, evidence that is irrelevant or immaterial to the central aspects of the litigation.
In civil cases, the role of the judiciary is to resolve the dispute based on the parties' claims and evidence.
Role of Legal Counsel
The role of legal counsel is to:
- Defend the law and its principles.
- Guide and represent their clients in court, before governmental entities or in private legal matters.
- Conduct research and analyse legal disputes.
- Explain complex laws and legal documents to their clients.
A lawyer must be prepared to challenge evidence presented against their clients. They have a duty to defend their client's interests, protect constitutional defence rights, and the presumption of innocence.
In criminal proceedings, any facts can be proven by any means, as long as these means are legal. If this principle is violated, the Public Prosecutor or the defendant will risk losing credibility of all the evidence, since the Judiciary apply the doctrine of "the fruit of the poisoned tree".
Similarly, in civil procedures, to get to the truth, the judge can use any person, party or third party and/or any document, without any further limitation than their legality/permissibility and that they have an immediate relationship with the disputed facts.
Civil Law
Verdicts can be declaratory or constitutive depending on the nature of the claim. In a declaratory verdict, the judge only acknowledges a previous legal situation with retroactive effects, while a constitutive verdict creates a new legal situation with effects from the day the verdict is pronounced. Examples of declaratory verdicts are those that declare the:
- Invalidity of a legal act.
- Forgery of a document.
- Scope of a contractual clause
- Acquisition of property by adverse possession.
A divorce decree is an example of a constitutive verdict.
Criminal Law
In criminal trials, a verdict can be an acquittal or a conviction. If the defence manages to prove the innocence of the defendant or if the public prosecutor fails to sustain its claims, it is very likely that the judiciary will resolve in favour of the defendant. When there is strong evidence, or the defence fails to undermine the presumptions of the public prosecutor, the verdict is most likely to be a conviction.
Contributor Profile
Manuel Martínez Pérez, Associate
Von Wobeser y Sierra, S.C.
T +52(55) 5258-1042
E mmartinezp@vwys.com.mx
W www.vonwobeserysierra.com
Professional Qualifications. Admitted to Practice, Mexico
Areas of Practice. Commercial contracts; corporate; corporate governance; M&A; joint ventures; foreign investment.
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